Sec. 307 RETROSPECTIVE MOTIONS 571

Its object, of course, was to obtain a New Trial; and it was commonly employed after a Special Verdict imperfectly found, but always for some Cause Upon the Record.’9 It dif- fered from the Motion for New Trial, which was based on Matters Extraneous to the Rec- ord. If granted when it should not be, it was Error, and the Award of it could be reversed, whereas a Motion for a New Trial was com- monly granted after a General Verdict and was not assignable for Error. The Motion for Venire Facias De Novo was granted where a Verdict was so imperfect that Judgment could not properly be grounded upon it.20 This might occur where the Verdict was not responsive to the Issue, or where some irreg- ularity in the Impaneling of the Jury was involved, provided such insufficiency or ir- regularity was Apparent on the Roll. If the Motion to Set Aside the Verdict and to Award a Venire Facias De Novo was granted, a Writ was then issued requiring the Sheriff to Summon a New Jury to try the Cause,2’

THE MOTION IN ARREST OF JUDGMENT

307. The Court will generally, on Motion, refuse to Enter Judgment upon a Verdict, De- fault, or Demurrer to Evidence, when substan- tial Defects exist in the Pleadings or the Ver- dict. And the Defect must be at least one which would have been fatal on a General Demurrer, and not one which a Verdict would cure; and it must be Apparent on the Face of the Record. If a Declaration shows No Cause of Action whatever, or a Plea is utterly Wanting in Stating a Defense, the Entry of a Judgment clearly cannot be allowed to repre- sent what has not been established. And, of course, a Motion in Arrest of Judgment must be made After Verdict and Before Rendition of the Judgment. It operates, with significant differences, as a kind of Delayed Demurrer.

The Rules of Pleading, c. XVIII, Retrospective Mo- tions, 771 (2d ed. Rochester, 1934).

Definition

IN Legal Proceedings, a “Motion” is an ap- plication, either written or made viva voce, by a Party to an Action or a Suit for some kind of Relief.22 And a Motion in Arrest of Judgment is a procedural device, entered up- on the Record, and is designed to Stay 23 Judgment, or prevent its Entry, pending a de- termination of whether the Record will sup- port the Judgment. Such a Motion usually occurs after an Issue of Fact has been tried and a Verdict Found, but the Motion is also available after a Default, in which case it is treated exactly as if it had been a Demurrer to the Declaration, and not like a Motion made after Verdict.24

The Principle Underlying the Motion

THE Theory of the Motion in Arrest of Judgment is that the Judgment of the Court is a Conclusion of Law from all the Facts as- certained and spread upon the Record, and as

such Conclusion must rest upon and be col- lected from the Whole Record, the Party who does not, upon the Entire Record, appear entitled to Judgment, cannot have it. Thus, a Substantive Defect is available at the Plead- ing Stage, by Demurrer; After Verdict and Before Judgment, by Motion in Arrest of Judgment; and After Judgment, by Writ of Error. And this principle holds true even though a Verdict has been found, a Default suffered, or a Demurrer to Evidence deter- mined in favor of the Party, who, upon the Whole Record, appears not to be entitled to Judgment. For even in the face of such Ver- dict, Default or Final Ruling on a Demurrer to Evidence, the Record, as viewed as a whole, may disclose No Right of Action, or no Legal

England, c. XXIV, Of Judgment, and Its Incidents,

623, 624 (1759).