Walker v. Sargeant , 11 Vt. 327 ( 1839 )

Collamer, J.

The plaintiff has filed a motion in arrest, containing matter, which, as he says, took place on trial. Such matter cannot be taken advantage of in this manner. A motion in arrest can be sustained only for matter apparent of record, and such things as take place on trial must be placed on record by a bill of exceptions, allowed by the court, before notice can be taken thereof for reversing a judgment; — for they would never be proper for a motion in arrest. But among the matters urged in arrest of the general judgment, found for the defendant on his pleas in offset is, that they are insufficient. The first objection is, that the declaration in offset does not contain the usual introductory averment that the plaintiff was indebted to the defendant at the commencement of the action. On a motion in arrest, the declaration, and every thing which must have been proved in sustaining what the declaration avers, is taken to have been shown. Now some of the counts here are on notes, alleged to be given and due before this action. This allegation having been found true supplies the want of any such direct averment. It is insisted that the counts on note are insufficient. That such declaration on note is sufficient was decided in Binney & Broadhead v. Plumley, 5 Vt. R. 500. The fourth count in the declaration in offset is clearly, bad, alleging no sufficient consideration for the promise, and the judgment being general on the whole declaration, it must be arrested. These two points were decided in Harding v. Cragie. 8 Vt. R. 501. It appears that the defendant also pleaded mil tiel record.— The ease does not show how this was found, nor for what claim the balance was found for the defendant, and therefore there must be a new trial.

Judgment arrested, and new trial granted.