| N.H. | Jul 15, 1858
The form of entering judgment against an administrator was fully discussed upon a writ of error, in Pillsbury v. Hubbard, 10 N. H. 224. It was there held that where an administrator institutes, a suit for a cause of action purporting to have arisen in the life of the testator, or intestate, and the defendant prevails upon the merits, judgment is to be rendered against the goods and estate of the testator, or intestate; but if the cause of action is alleged to have accrued after the decease of the testator, or intestate, and the executor or administrator might sue in his own right, judgment may be entered against him de bonis propriis.
In the original action these defendants, then plaintiffs, described themselves as executors of Dorothy Wendell, whose estate was administered in the insolvent course, and alleged that they were seized as executors, and the said Moulton disseized them. The cause of action is alleged to have accrued to the plaintiffs after the decease
¥e have examined the execution on which the arrest was made in this case, and find it is in form precisely like that in Kenniston v. Little, except the clause directing the arrest. It recites, like that, a judgment recovered against A. ~W. and J. W., administrators, with the will annexed, of the estate that was of D. W., &c., for costs taxed at, &c., as appears of record, and it commands the officer to levy that sum of the goods, chattels or lands of said debtors, and in default, &c., to arrest the said debtors and commit them, &c. In the case of Kenniston v. Little the execution was levied on the estate of the administrator, and trespass was brought on the ground that the execution authorized a levy only on the estate of the deceased; but it was held that this recital implied not a judgment against the estate of the deceased, but one against the administrator’s own estate. The court will not presume, in the absence of any statement in the case to that effect, that the
If this were otherwise, the judgment was merely erroneous, or the execution ii’regular; and, until reversed tor error, or set aside for irregularity, they cannot be collaterally impeached. Blanchard v. Goss, 2 N. H. 491; Morse v. Presby, 25 N. H. (5 Foster) 303; Keniston v. Little, 30 N. H. (10 Foster) 324; Kittredge v. Emerson, 15 N. H. 262. It is not material to inquire whether the supposed defect is an error in the judgment, or a mere irregularity, since the effect here is the same. The parties are bound until a reversal of the judgment, or the proceeding is set aside on motion.
Regarded as an error it is probably beyond redress, the case having remained so long unquestioned that a writ of error could not be sustained. The same delay must operate as a complete bar to any application at this day to set aside the execution for irregularity.
It was said in the argument that an irregular execution is void, but in the more rigid sense of that term we think it is not so. Irregular process is not void, but voidable; not voidable every where, and in every way, but voidable by a seasonable application to the court to set it aside; but they may be ratified and confirmed by a release of the objection, or by a waiver, either express or implied, from the acts or negligence of the party interested to avoid them.
Judgment for the plaintiff.