Sec. 307 RETROSPECTIVE MOTIONS 573

Since after the Statute of Demurrers,34 in 1585, Supplemented and Amended by the Statute of Anne in 1705,35 Formal Defects in the Record were Waived except on Special Demurrer, it followed that thereafter Judg- ment could not be Arrested for any other than a Substantive Defect. Such a fault may be found either in the Pleadings or in the Verdict if one has been rendered. Thus, where the plaintiff has been Awarded a Ver- dict on a Declaration Totally Defective in Substance-as where in Trover he fails to al- lege a Conversion—or varies totally from the Original Writ—as where the Writ sued out was in Special Assumpsit for Breach of a Con- tract and the Verdict was in Case for a Tort— Judgment may be Arrested on the defendant’s Motion. But if the Declaration was Substan- tively Valid, and the Plea in Bar on which the defendant obtained a Verdict is Substantively Defective—as where the defendant Pleaded Not Guilty to a Declaration in Assumpsit— the Judgment may in turn be Arrested on the Motion of the Plaintiff.36 In each instance the Defect at which the Motion Struck was in the Pleading.

The Defect may, however, be in the Ver- dict. Thus, where the Pleadings terminate in a Perfect Issue, but the Jury finds a Verdict Materially at Variance with the Issue—as where the Issue is whether the defendant owns Blackacre and the Jury by its Verdict finds that the defendant owns Greenacre— Judgment will be Arrested for the insuffi- ciency of the Verdict. The Court cannot tell from such a Verdict for which Party the Judgment should be given. And, in general, it is a universal Rule in Arresting Judgment, that any Defect in the Record which would render erroneous a Judgment entered in pur- suance of a Verdict, constitutes a valid ground for Arresting the Judgment. “For,”

Rep. 1008 (1600).

says Gould, “no Court should do so nugatory an act, as to render a Judgment, which, when Rendered, must be erroneous.”

Defects in the Pleadings

IT has been an invariable Rule that No Defect in the Pleadings which would not have been fatal to them on a General Demurrer can be available for Arresting a Judgment,38 Formal Defects being Cured by Statute or open only to Special Demurrer. The Con- verse of the Rule, however—that all Substan- tial Defects will support this Motion—is not universally true, as they may consist of the omission of particular Facts or circumstances which, in accordance with a Rule we have heretofore considered, the Court will presume, after a Verdict, to have been duly proved.39 This distinction furnishes the true criterion as to what Defects in a Declaration or Plea are Grounds for Arresting Judgment. If they come within the Rule of Aider by Ver- dict, the Motion cannot be sustained.40

As Smith declares: “A Motion in Arrest of Judgment is the exact reverse of that for Judgment Non Obstante Veredicto. The ap- plicant in the one case insists that the plain-

155 (6th Am. ed. by Will, Albany, 1909).

cago, 144 I1l.App. 293 (1908).

A Misjoinder of Causes of Action or of parties is

ground for Arrest of Judgment. Bull v. Mathews,

20 11.1. 100, 37 A. 536 (1897); Guinnlp v. Carter, 58

198 Ill. 462, 64 N.E. 1011 (1902).

(1835); Avery v. Inhabitants of Tyringham, 3 Mass. 160 (1807); Read v. Inhabitants of Cheims- ford, 16 Pick. (Mass.) 128 (1834).

N.E. 680 (1898).

A Verdict will not mend the defect, where an essen- tial element of the case is not alleged in the Dec- laration, but it will cure an ambiguity or generality of statement. Thus, in a Contract Action, Judg- ment will be arrested for failure to allege perform- ance of conditions precedent. Rushton v. Aspin- all, 2 Doug. 679, 09 Eng.Rep. 430 (1781).