572 LITIGATING THE CONTROVERSY Ch. 27

Defense, in his favor,25 as the case may be. And, therefore, if a Verdict is found for the plaintiff, upon a Declaration substantively defective—as in Ejectment in which there is a failure to allege title—or for the defendant, on a Plea in Bar totally void, Judgment must in either case be Arrested. The Motion in Arrest of Judgment, of course, must be made Before Judgment and it operates, with sig- nificant differences, as a kind of Belated De- murrer.26

ment is One of Law

THE Motion in Arrest of Judgment raises a Question of Law; it in effect asserts that there is some Error Apparent on the Face of the Record which in Point of Law vitiated the proceedings culminating in the Verdict; that is, Judgments were Arrested only for intrin- sic causes.27 And after the Statutes of Amendments and Jeofails, the Error Manifest upon the Face of the Record was required to be One of Substance and Not One in Form.

Defects Available Upon Motion in Arrest of Judgment

UNDER the Ancient Common Law a Mo- tion in Arrest of Judgment could reach mere Defects in Form in the Pleadings. After the Enactment of the English Statutes of Amend- ments and Jeofails, this Practice of using the Motion in Arrest to reach Formal Faults in

Sawyer v. Boston, 144 Mass. 470, 11 N.E. 711 (1887);

Bedell v. Stevens, 28 N.H. 118 (1853).

The relief must be applied for before Final Judg- ment. Keller v. Stevens, 66 Md. 132, 6 A. 533 (1886). See, Miller v. Gable, 30 Ill.App. 578 (1888); Smith V. Biesiada, 174 md. 134, 90 N.E. 1009 (1909).

And the errors must be apparent on the Face of the Record. Jordan v. State, 22 Fla. 528 (1886).

But the Evidence is no part of the Record. Bond v. Dustin, 112 U.S. 604, 5 S.Ct. 296, 28 L.Ed. 835 (1884).

Frum, 41 W.Va. 445, 23 S.E. 604 (1895).

the Pleadings, was corrected.28 In conse- quence of these Statutes, Judgments are now largely protected against Arrest for Defects in Form, as well as for Various other Defects, which had once been treated as Substantive,. but which, by the combined impact of the Statute of Elizabeth in 1585 29 and the Statute of Anne in 1705,30 have been specifically enu- merated and expressly cured.3’

At Common Law, and aside from any Stat- utory Provisions, there are Many Defects in Pleading which formerly have been treated as. Substantive, and which would be regarded as. fatal, except for their being Aided by Verdict. If a Defect is Cured by Verdict, a Motion in Arrest of Judgment will not be sustained.

With respect to such imperfections as are Aided by Verdict at Common Law, it was early observed, “that where there is Any De- fect, Imperfection, or Omission in Any Plead- ing, whether in Substance or Form, which would have been a Fatal Objection upon De- murrer; yet if the Issue Joined be such as necessarily required on the Trial Proof of the Facts so Defectively or Imperfectly Stated or Omitted, and without which it is not to be pre- sumed that either the Judge would Direct the Jury to give, or the Jury would have given the Verdict, such Defect, Imperfection, or Omission, is Cured by the Verdict by the Com- mon Law.” 32 And this Rule has subsequently been followed.33

28. McKelvey, Principles of Common-Law Pleading,

174 (New York, 1914).

3L The Motion in Arrest of Judgment is succinctly discussed In Huger v. Cunningham, 126 Ga. 684, 56 S.E. 64 (1906).

85 Eng.Rep. 244, 245 (1669).

Rep. 1203 (1848); Kidgill v. Moor, 9 C.B. 364, 137

Eng.Rep. 934 (1850); Massachusetts: Worster V.

Proprietors of Canal Bridge, 16 Pick.(Mass.) 541

(1835).