If a review be granted by the Supreme Court, in an action tried before the Court of Common Pleas, the trial will be had at the bar of the former court.' And each party is entitled in the re-trial, to all the evidence used at the former trial, which is not liable to legal objections, or which may not, at the review, be obtained from the same source, in a better and more authentic form.2 Where there are issues both of law and fact, the whole is liable to revision, in the same way, as if no trial had been had, the law by the court, the fact by the jury.3 It was formerly necessary, that cases upon review should be tried upon the same pleadings as the original action; but by Stat. 1817. ch. 63. amendments may be allowed on review, as in other cases. SECT. III. JUDGMENT ON REVIEW. On a writ of review, the former judgment cannot be reversed, either in whole or in part, but a new judgment must be entered. If the former judgment were wrong, the plaintiff in review will have judgment to recover back the money erroneously recovered in the first suit, and if the former judgment were right, the defendant in review will have judgment for his costs of review, and may execute his former judgment; and the order arresting the execution of the first judgment, if any had been passed, would in that case be vacated. 1 Keyes v. Stone, 5 Mass. Rep. 391. Walker v. Haskell, 11 Mass. Rep. 177. 2 Gold v. Eddy, 1 Mass. Rep. 1. 3 Perry v. Goodwin, 6 Mass. Rep. 498. 4 Ely et al. v. Forward et al. 7 Mass. Rep. 25. Swett et al. v. Sullivan, 7 Mass. Rep. 342, 348. If the original plaintiff recover a larger sum upon the review than on the former trial, judgment is only entered for the excess in review; and if part of several defendants review, in such case, the second judgment will be against those only, who sued out the review, the first judgment remaining good against them all.' If a party against whom a judgment was recovered upon the first trial, prevail upon the review, he will be entitled to recover the costs, which he ought to have recovered on the first trial, as well as his costs on review.2 Costs on review. Vide Chapter on Costs.3 1 Emerson et al. v. Pattee & ux. 1 Mass. Rep. 482. CHAPTER XIX. ARREST OF JUDGMENT. Time when motion must be made. A motion in arrest of judgment is made after verdict, or default, and before judgment is rendered.' And as in our practice, judgments are in all cases rendered, as of the last day of the term, except when specially moved for at an earlier day, motions in arrest of judgment may generally be made at any time, during the term. Cases in which a motion in arrest of judgment may be made. A motion in arrest of judgment can only be made, on account of some intrinsic defect, apparent on the face of the record, which would render the judgment in the case erroneous, and which is so apparent, that the court may judge upon the record itself, and the grounds of their judgment be known to their successors.3 After judgment on demurrer, no motion in arrest of final judgment can be entertained, for any exceptions which might have been taken on the demurrer; it is otherwise, however, in the case of a default, because the judgment is not rendered in so solemn a manner.5 Nor will a motion in arrest of judgment lie, for any 1 The King v. Holt, 5 Term. Rep. 436, 445. Rex v. Hayes, 2 Stra. Rep. 843, 845. 2 1 Salk. 77. 1 Ld. Ray. 232. 3 Ibid. Sutton v. Bishop, 4 Burr. Rep. 2283, 2287. Edwards v. Blunt, 1 Stra. Rep. 425. Creswell v. Puckham, 6 Taunt. Rep. 630. S. C. 2 Marsh. Rep. 326. 6 Moore. 209. • Ibid. thing that is aided after verdict, or that is amendable at common law, or that is amendable or cured, as a matter of form, by statute.' A defendant cannot move in arrest of judgment, for any thing he might have pleaded in abatement; as for instance, an irregularity in the service of a writ,3or for want of an indorser of the writ,—or that the writ bears teste of a justice, who is a party to the suit.5 If there be a misjoinder of counts, and a verdict for the plaintiff on those that are well joined, and for the defendant on the others, the misjoinder is not a cause for arresting the judgment. But where there are several counts in a declaration and some of them are bad, upon a general verdict, judgment will be arrested. The verdict, however, may be amended by the judge's notes, so as to apply to the good counts; and it is not too late, on the motion in arrest of judgment, for the plaintiff to move for such amendment. And though the misjoinder of counts be bad, yet if one of them be stricken out, by leave of court, it will be considered as if never inserted. And if a general verdict be returned in such a case, the plaintiff may, at any time during the term, on motion, have leave to amend the verdict, and enter it on any count, on which 12 Tidd's Pract. 19. 22 Black. Rep. 1120. 3 Gilbert et al. v. Nantucket Bank, 5 Mass. Rep. 97. 4 Ibid. 6 Prescott v. Tufts, 7 Mass. Rep. 209. Kightly v. Birch, 2 Maule & S. Rep. 533. Benson v. Swift, 2 Mass. Rep. 50. Slevenson v. Hayden, 2 Mass. Rep. 406. Barnard v. Whiting et al. 7 Mass. Rep. 358. Sullivan v. Holker, 15 Mass. Rep. 374. Dryden v. Dryden, 9 Pick. Rep. 546. 1 Johns. Rep. 506. 11 Johns. Rep. 100. 89 Cowen. Rep. 151. the evidence by law, would, at the trial, have entitled him to recover, and may have leave to strike out of his declaration, any defective counts.' Judgment will be arrested, if it appear that there was no writ or process, to give the court jurisdiction, but that proceedings have been carried on by consent.2 If an action, local in its nature, be sued in a wrong county, the judgment may be arrested.3 If an indictment, or a declaration upon a statute, do not conclude "contra formam," &c. judgment may be arrested. And in a prosecution on a private statute, if the statute be not recited, the judgment may be arrested." Judgment against either plaintiff or defendant, may be arrested; as where upon a complaint under Stat. 1797. ch. 63. against the owner of a mill, for flowing land of the complainant, if the respondent, claiming to be wholly exempt from the payment of damages, do not plead to the complaint, so that the issue may be tried at the bar of the court, it must be tried by the sheriff's jury, and they are bound to give to the complainant some damages, and if they do not, judgment will be arrested. How a motion in arrest of judgment must be made. By a rule of the Court of Common Pleas,' motions in arrest of judgment must be made in writing, and the causes thereof must be specified therein. 1 32d Rule C. C. Pleas. Appendix B. 21 Sell. Pract. 501. 3 Robinson v. Mead, 7 Mass. Rep. 353. But vide Yelv. 12a. note. * Commonwealth v. Northampton, 2 Mass. Rep. 116. › Commonwealth v. McCurdy, 5 Mass. Rep. 324. Vandusen v. Comstock, 3 Mass. Rep. 184. 7 24th Rule C. C. Pleas. Appendix B. |