Sec. 310 RETROSPECTIVE MOTIONS 583
while failing to interpose a legally sufficient
Defense. This Motion, like that in Arrest of Judgment, was affected by the Statute of De-
murrers92 and the doctrine of Aider by Ver- dict. It was used during the Developmental
Stage of American Procedure, and, like the Motion in Arrest, has been retained in the
Common Law States. It received no recogni- tion in the New York Code of Procedure in
1848. Under Modern English Law the names of the Retrospective Motions no longer consti- tute a part of “the working procedural vocab- ulary.” Under the English Rules, the Issue
as to a failure to State a Cause of Action or Defense after Verdict, is converted into one as to whether a Proper Cause of Action or Defense has appeared in the evidence, as the applicable principle now is, according to Lord Atkin in
Bell
v.
Lever Bros., Ltd.,94
that “if
the
Issue of Fact can be fairly deter- mined upon the existing evidence, they (the Parties) may of course Amend.”
The Motion for Judgment Notwithstanding the Verdict, of Common Law Origin and
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92.
|
27 Eliz. c. 5, 6 Statutes at Large 360 (1585).
|
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93.
|
Millar, Civil Procedure of the Trial Court in His-
|
torical Perspective, c. XIX, Trial by Jury,
§
5, The Motion in Arrest and its Congeners, 329 (New York 1952).
|
94.
|
[1932J A.C. 161, 216.
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Development, must not be confused with the Motion for Judgment on the Evidence Not- withstanding the Verdict, as the former is governed by the State of the Pleadings, while the latter is influenced by the State of the Evidence.95
The Motion for Repleader
THE Motion for Repleader, granted upon the Immateriality of the Issue as made by
the Pleadings, has survived in most Common Law Jurisdictions96 and in some other
plac- es.97 Where not present in
its
Common-Law
Procedural Form, the same result may gen- erally be accomplished by obtaining an Order
for an Amendment of the Pleadings and the
Award of a New Trial.98
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95.
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For a full discussion of this new procedural de-
|
vice. see, Millar,
Civil
Procedure of the Trial Court in Historical Perspective, c. XIX, Trial by Jury,
§
6, The Motion for Judgment on the Evidence Not- withstanding the Verdict, 330--335 (New York 1952).
|
96.
|
Millar, Civil Procedure of the Trial Court in His-
|
torical Perspective, e. XIX, Trial by Jury,
§
5, The Motion in Arrest and its Congeners, 329 (New York 1952).
|
98.
|
Millar, Civil Procedure of the Trial Court in His-
|
torical Perspective, c.
XIX,
Trial by Jury,
§
5,
The Motion in Arrest and its Congeners, 329 (New York 1952).
