Majority
p. 648Williams vs. Hogeboom. moved to set aside the execution issued in this suit, which was tested on the fifth day of July which was Sunday, and made returnable on the eleventh. He insisted first, that the execution should Have been returnable sixty days from the receipt thereof by the sheriff, Statutes 1840, p. 334, § 24; and second, that being tested on Sunday the writ was absolutely void, and could not be amended. The suit was commenced and judgment recovered in 1839.
Headnote
In suits' commenced previous to the 14th May, 1840, it is not necessary that there should by sixty days between the teste and return of executions. An execution though tested on Sunday is amendable.A. P. Holdridge, for the defendant,
P. Cagger opposed the motion.
By the Court,
The statute referred to does not affect any suit or proceeding commenced before the act took ^effect § 38, and consequently the objection that there was not sufficient time between the teste and return of the execution, is not well taken. This point was decided at the last motion term.
Although tested on Sunday, the writ was not absolutely void, and the plaintiff may amend on paying the costs of this motion.
Ordered accordingly.