number, the Motion for a New Trial, the Motion for Venire Facias de Novo, the Mo- tion in Arrest of Judgment, the Motion for Judgment Notwithstanding the Verdict, and the Motion for Repleader.

With the exception of the First Motion, all proceed upon the theory of taking advantage of some Defect Apparent Upon the Face of the Common Law Record. The Motion for a New Trial seeks to reach Errors which lie Outside that Record, and which can be shown without reference to the Roll.

MATTER OF RECORD VERSUS

MATTER OF EXCEPTION

304. Four out of five of the Retrospective Motions are addressed to Errors Apparent Up- on the Face of the Common-Law Record. The Common-Law Record consists of the Process, the Pleadings, the Verdict and the Judgment. After Judgment, such Errors were Reviewable by Writ of Error. Errors which occurred at the Trial were not part of the Common-Law Record, and could be Reviewed by a Motion for a New Trial, after Verdict and before Judg- ment; by Statute, such Errors could be Re- viewed after judgment by incorporating them into the Record by means of a Bill of Excep- tions. It was therefore essential to keep clear- ly in mind the distinction between Matter of Record and Matter of Exception.

UNDER the ancient practice, the Proceed- ings in a litigated case were Entered upon the Parchment Roll, and when this was completed, the end product became known as the Common-Law Record. It consisted of Four Parts, the Process, which included the Original Writ and the Return of the Sheriff, by which the Court acquired Jurisdiction over the defendant; the Pleadings, presented by the Parties in the prescribed order to develop an Issue of Law or of Fact, and which includ- ed the Declaration and all subsequent Plead- ings, together with the Demurrers, if any; the Verdict; and the Judgment. These Four Elements formed the Common-Law Record, but it should be observed that at the point where the Retrospective Motions come into

play, the Record has not been developed be- yond the Stage of Entering the Verdict upon the Roll.

At this point it should also be recalled that between the time when the Pleadings Termi- nated in an Issue, which Joinder in Issue was duly Recorded on the Parchment Roll, and the time when an Entry of the Verdict was made, nothing was Recorded on the Parch- ment Roll. The reason for this was that be- tween the Joinder of Issue and the Rendition of the Verdict, the Trial takes place, and what occurs during this Trial does not Appear upon the Face of the Common-Law Record. Thus, Offers and Rejection of Evidence, the Court’s Instruction of the Jury, or its Refusal to Instruct as requested by Counsel, or any Misconduct Connected with the Trial, such as Prejudicial Remarks on the Part of the Court, and the like—that is—any Error that occurs at the Trial—cannot be corrected by resort to the Common-Law Record because not Ap- parent Upon its Face. Such Errors were pre- served only in the notes made by the Presid- ing Judge, or in his memory, and were review- able, after Verdict and before Final Judg- ment, by a Motion for New Trial made before the Court En Banc at Westminster, within four days after the Commencement of the Next Term following the Rendition of the Verdict. As each of the Judges of the Court had Motions of a similar character coming up for decision from the Trials over which they had presided, the natural inclination of each Judge was to support the Rulings of his broth- er Jurists, and thus Overrule the Motion for a New Trial. Furthermore, Errors that oc- curred at the Trial were not Reviewable after Judgment on Writ of Error, because Not Ap- parent on any one of the Four Parts of the Common-Law Record. To remedy this De- fect, Parliament enacted Chapter 31 of the Statute of Westminster II in 1285,6 which provided for Review of such Errors through