
    WILKINSON, ET AL. v. DANIEL.
    Lost papers — issue—rules of court — motion in anest.
    It is error to order a cause on to trial without an issue; if the papers have been lost, they should be supplied before the trial.
    The motion in arrest of judgment is receivable after the decision on a motion for a new trial, and a rule of court that prevents the receipt of such a motion is contrary to law, and void. Courts have power to make rules of practice consistent with the law, not contraiy,
    Error to the Common Pleas. The case below was assumpsit on the common counts. Plea non assumpsit, and notice of offset. It appeared by a bill of exceptions, that when the cause was called for trial, there were no pleadings on file, and the defendant’s witnesses being absent, he objected to going on without the pleadings and issue, but agreed that a declaration had been filed in assumpsit, to which there had been put in the general issue, with notice of setoff. The court ordered the cause for trial, and refused to order the pleadings to be first filed or replaced. After verdict, the defendant moved for a new trial, which was overruled the next day. The defendant then moved in arrest of judgment, that there was no issue for trial: this the court refused to receive, because it was not filed the day after the verdict, and so was filed contrary to one of the rules of court, requiring such motions to be filed the day after verdict. At the same time, the court gave leave to the plaintiff to make up the pleadings. All these matters were assigned for error.
    P. Hitchcock and J. H. Paine, for the plaintiff in error.
    Perkins, contra.
   By the Court.

, There was no issue here to try, and the court below erred in ordering the cause on to trial without; the verdict is a nullity; 5 0.P.277.

The court were also in error in refusing the motion in arrest, because not filed within its rule. Our courts have power only to make rules not repugnant to the law, (29 O. L. 72); and the law provides (29 O.L. 73) that motions for new trial shall be first made, and if denied, the defendant may then move in arrest of judgment. In this case, the new trial was not denied until the second day after the verdict, and the defendant could not before move in arrest, without waiving his motion for a new trial, or violating the law; the rule must have been adopted inadvertently; it is of no effect when used to contravene the law.

The judgment is reversed with costs, and the cause remanded to be reinstated and proceeded in.  