The action was continued nisi for advisement, and the opinion of the Court was drawn up and delivered at a subsequent term by
Emery J.In this case the writ bears date the 5th of January, 1834, and was served the 7th day of May, 1834, returnable before the Supreme Judicial Court on the 3d Tuesday of June-, then next. The defendant appeared and the action was continued. At the October Term, 1834, the defendant moved that the writ be quashed because, he says, it was issued on the Lord’s day. The trial proceeded, leaving the defendant such benefit as he ought to have by law, in consideration of all the proceedings in the case, if he should establish the fact, that it issued on Sunday. No such proof has been given other than such as arises from the date. The discussion has been elaborate and ingenious, upon the assumption that it was issued on the Sabbath. But it is insisted by the plaintiff’s counsel, that it is too late for the defendant to make the objection, inasmuch as it was not taken by plea in abatement at the first term, agreeably to the rule of this Court.
And we are inclined to the opinion, that although the objection may be taken by motion to quash the writ, as well as by plea in abatement, for errors and defects apparent on the face of the record ; we are also satisfied, that generally, when the objection is taken by motion, it is entitled to no more favor in point of time, within which it should be made, than a plea in abatement. Howe’s Practice, 213; 4 Pick. 89, Rathbone v. Rathbone; 5 Pick. 61, Coffin v. Jones.
A void writ however cannot be amended according to N. Y. practice. We take it for granted, that this writ bears date of a Sunday. But the whole argument, derived from this circumstance, seems to be overthrown in the proof made before us, on the argument, by Mr. Poor, who on oath declared that he commenced making the writ in the Court house in the session of the Court of Common Pleas, after Mr. Gilman exhibited the evidence ; and that it was not made on Sunday.
*321This evidence we think was rightly received agreeably to the spirit of the decision in 7 Greenl. 370, Johnson v. Farwell. And here this part of the case might be ended. And indeed we see no valid objection against the verdict or direction of the Court, as to the merits.
For the alleged failure of consideration is not established, the defendant having availed himself of the judgment and his enjoyment of the benefit of the assignment has not been withdrawn from him fay Leggett & Ilance.
We must consider it as having vested a right in him till he has been compelled to restore the amount. An opinion has been drawn more at length on the case, but it is not deemed requisite to communicate it.
Judgment on the verdict.