delivered the opinion of the court.

A motion in arrest of judgment must always be founded on some error, appearing on the face of the record. From the declaration in this case, it would appear that the foundation of the action was a promise made by the defendant to the plaintiff. But by the account annexed, the debt appears to have been originally due to John McKenzie, and endorsed by him to the plaintiff. And although an open acco.unt cannot be assigned so as to enable the assignee to maintain an action in his own pame; yet the defendant may waive the error, which he did in this case by confessing judgment. There is no error appearing on the face of the record, unless the account be taken as a part of it. And even th.en we may suppose a subsequent promise to pay to the plaintiff, upon such, consideration as would be obligatory on the defendant; and the court .will presume so after a confession of judgment.

The motion therefore must be refused.