By an inspection of the writ it would appear, that it was made returnable at the proper term, and that the Court had jurisdiction of the case. It was only by evidence, dehors the record, that the writ could be abated. When a defect is apparent of record, advantage may be taken of it by motion, and a decision upon that motion will present a question of law arising upon the sufficiency or insufficiency of the record.
When the defect is not thus apparent, advantage of any alleged defect can only be taken by plea in abatement; for the plaintiff has a right to traverse the allegations and to have an issue forrqed to be tried by a jury. Com. Dig. Abatement, K and H, 1; Mitchell v. Starbuck, 10 Mass. 5; Purple v. Clark, 5 Pick. 206 ; Upham v. Bradley, 17 Maine, 423.
In the case of Purple v. Clark, it was decided that it was only when a decision was made upon a motion to dismiss for, a defect of process apparent of record, that a question of law would be presented by it.
In this case, a question, not of law but of fact, was pre