Town of Canterbury v. Bennett , 22 Conn. 623 ( 1852 )

Hinman, J.

In the case of Pearl v. Rawdin, 5 Day, 244, it was decided, that the insufficiency of the declaration was no ground for a motion for a new trial; and the court thought the point so clear, that it refused to hear argument upon it, although it was stated, that the question was brought up in that form, by consent of parties. Again, in Minor v. Mead and another, 3 Conn. R., 289, it was held, that an error apparent on the record could not be taken advantage of, on a motion for a new trial. These cases were approved in Burr v. Broome, 4 Conn. R., 247, and the same principlqapplied to abill in chancery, brought to foreclose a mortgage. In conformity to these decisions, the practice, for many years, has been, to file motions in arrest, for any insufficiency in the pleadings, at the same time when there was also allowed a motion for a new trial of the case. Our reports show many cases in which this has been done.

In this case, the objections to the plaintiff’s right to recover, if there are any which ought to prevail, all appear upon, and arise from, the declaration itself, and the defendant’s whole argument has been made, for the purpose of showing that, upon the whole record, the plaintiff is not entitled to judgment. If this is so, he could have filed a motion in arrest, and he can now, after judgment, bring a writ of error, but he has no ground for a new trial, and the present motion must be dismissed.

In this opinion, the other judges concurred, except Waite, J., who having tried the cause in the court below, was disqualified.