delivered the opinion of the court.
The plaintiff in error, Jones, obtained a judgment at the June term 1840, of the circuit court of Adams county, against Stanton and Bingaman, as executors of B. Harman, deceased, for nine thousand six hundred and fifty-three dollars. An execution issued, which was levied upon some twenty slaves, and a forthcoming bond was given by the executors in their representative capacity, with A. L. Bingaman as surety, which was returned forfeited to the following term. An alias execution issued, which was stopped by a supersedeas, and the supersedeas made perpetual) at the November term 1841, of said court. A motion was made by the plaintiff, at the same term of the court, to quash the forthcoming bond, which was overruled by the court, because not made at the term to which the bond was returned. These matters were then *607set forth in a bill of exceptions, and the case brought to this court by writ of error.
The case presents this singular aspect. The plaintiff had a valid judgment, which was satisfied by a levy of his execution and forfeiture of the bond; the execution from the judgment upon the bond was, in the language of the record, perpetually superseded, and the bond itself sustained, because the. motion tQ quash was made at an improper term. This appears very much like a right without a remedy.
The first question, presented in argument is, whether the executors as such had a right to give a forthcoming bond, and thereby to bind the estate. I have been able to find no case in which that point has been discussed, but Brooke’s administrator v. Levy’s executor, 1 Ran. 1, is a c6se in which such a bond appears to have been given. It is very briefly reported, and the statement on this point merely says: “ The appellee made a motion against the appellant and his surety in a forthcoming bond.” No objection was urged to the bond on this ground, either by counsel or by the court, and judgment was rendered upon it. As the whole law on this subject has been much canvassed, in that state, it would seem to have been taken for granted, that such a bond was legal. We do not see any thing in the statute of this state, which restricts the privilege exchtsively to persons acting in their own right. It is a law supposed to operate beneficially for defendants, and claims a liberal interpretation at our hands. But it is not necessary to decide that question.
The defendants voluntarily gave the bond, they did not move to quash it at the term to which it was returned forfeited, and we think they could not afterwards treat it as a nullity, and regard it as absolutely void. Possibly at that term either party might have quashed it on motion, not because it was void, but because it was irregular; though as to this we give no opinion. But after that term, when according to the current of decisions here, the day which the parties had in court was passed, neither party could say that the judgment upon it was absolutely void. If only voidable, it remained in force, until set aside or reversed, in some regular and recognized manner.
It is now objected that no execution can be . issued upon it, be*608cause it would have to be against the executors, to be levied of the goods of the testator in their hands, and against the surety in his own right.
At common law .this objection would have been valid, but the rule is probably changed here by reason of the several statutes, making joint obligations joint and several, and making them survive against the representatives of a decedent. This construction has been put upon a similar statute in several of our sister states. Thus in North Carolina it ha,s been holden, that a joint action could be maintained against the surviving obligor, and the executor of a dead one. Smith v. Fagan et al., 2 Devereaux, 302. The same has been decided in Tennessee, in regard to partners. Simpson and Choat v. Young et al., 2 Hum. 514. In Virginia it has been ruled that the law respecting partitions, joint rights and obligations, is applicable to joint judgments. Roane’s administrator v. Drummond’s administrator, 6 Ran. 182.
But this point does not call for any authoritative decision at our hands; the same reasoning applies to it, which has been urged on the other point. There is already a subsisting judgment, which even if it be erroneous, is valid, until reversed. The parties have never complained of it, in any way which authorized a reversal, and we think the plaintiff is entitled to have it satisfied. The judgment of the court below is therefore reversed, upon the single ground that the execution should not be perpetually suspended or superseded, in a case in which the error complained.of preceded the judgment, and in which the judgment cannot be set aside upon motion merely.
Judgment reversed.,