The opinion of the Court was by
Shepley J.The first error assigned is, that the sheriff was commanded to attach the goods and estate of the plaintiff in error instead of the goods and estate of her intestate. This objection to the form of the writ might have been taken by a plea in abatement; and one cannot assign as error that, which might have been thus presented to the consideration of the *254Court. 2 Saund. 101, g, note. And if the declaration be sufficient and the judgment be formal, an informal writ may be used without subjecting the party to a loss of his judgment; unless the informality or defect be so great, that the writ will not authorize a judgment. In such case the defect may be a matter of substance; otherwise it is but a defect in matter of form, for which error will not lie, since the statutes of jeofails. 2 Saund. 101, note 1.
The errors from the fourth to the tenth inclusive are assigned for defects in the declaration. The account annexed is a part of the declaration. There can be no doubt, that the suit was instituted against the plaintiff in error in her capacity of administratrix upon the estate of Ebenezer S. Piper. The declaration alleges, “ that the said Piper in his lifetime was indebted to the plaintiff in the sum of thirty-seven dollars and fourteen cents according to the account annexed, which is still unpaid, in consideration thereof the said Elizabeth hath promised to pay the same on demand, yet though often requested said defendant has not paid the same, but neglects so to do.” The allegation is not made in terms, that she made the promise in her character of administratrix, but from the description in the writ and the other allegations in the declaration, that may be inferred. Such promise by her as administratrix need not be in writing or upon any other consideration, than the debt due from the intestate, to be sufficient to authorize a judgment against the goods and estate of the intestate in the hands of the administratrix. Secar v. Atkinson, 1 H. Bl. 102; Whitaker v. Whitaker, 6 Johns. R. 112. And when the action is founded upon such promise, it is not necessary to declare also upon a promise made by the intestate, or to allege, that he was requested and refused to pay. Indeed a request to pay need not be alleged in any other than those cases, in which it is necessary to allege and prove one, to entitle the plaintiff to maintain his action. A formal defect in the venue was aided at common law after a judgment by default, because the defendant thereby admitted, that there was nothing to try. Shandois v. Simpson, Cro. Eliz. 880. But a more conculsive *255answer to all the objections to the form of the writ and declaration is, that they were cured after verdict by the statute of 16 and 17 Car. 2, c. 8; and the statute 4 Ann, c. 16, <§> 2, extended the provisions to cases of judgment by default.
The second, third, and eleventh errors assigned, relate to the form of the judgment, which, according to the case of Hardy v. Call, 16 Mass. R. 530, should be regarded as a judgment against the plaintiff. It was the duty of the clerk to have made up a formal judgment appropriate to the case stated in the writ and declaration. It was the error of the clerk and not of the Court, that a judgment was not formally entered up against the goods and estate of the intestate. And that the name of the administratrix was not correctly recited. In such cases the judgment although erroneous should not be reversed, but corrected. Short v. Coffin, 5 Burr. 27, 30; Atkins v. Sawyer, 1 Pick. 351. The clerk is directed to correct the error in the record of the judgment, which is then to be affirmed.