Durgin's wife and the justice were second cousins. By the common law of this state, a judge related to either party within the fourth degree is not qualified to sit in the cause. Bean v. Quimby, 5 N.H. 94; Gear v. Smith,9 N.H. 63; Sanborn v. Fellows, 22 N.H. 473; Moses v. Julian, 45 N.H. 52. The question whether he is disqualified by a more distant relationship (Sanborn v. Fellows, 22 N.H. 488) need not now be determined; because, assuming that the justice could not lawfully act in the case, the judgment was voidable only, and not void. Moses v. Julian, supra; Stearns v. Wright,51 N.H. 600; Crowell v. Londonderry, 63 N.H. 49; Dimes v. Grand Junction Canal, 3 H. L. Ca. 759, 785, 790; Phillips v. Eyre, L. R. 6 Q. B. 1, 22. In the last named case the court say (p. 22), — "As a rule, the judgment of an interested judge is voidable, and liable to be set aside by prohibition, error, or appeal, as the case may be; but it is not absolutely void, and persons acting under the authority of such a judgment, before it is set aside by competent authority, would not be liable to be treated as trespassers." The plaintiff had a complete remedy by appeal. A judgment rendered in this state against a citizen of this state (Rangely v. Webster,11 N.H. 299; Russell v. Perry, 14 N.H. 152; Eastman v. Dearborn,63 N.H. 364; Carleton v. Bickford, 13 Gray 591; Finneran v. Leonard, 7 Allen 54; McCormick v. Fiske, 138 Mass. 379; Eliot v. McCormick,144 Mass. 10; Coit v. Haven, 30 Conn. 190) by a court, or by any tribunal, for the revision of whose proceedings a direct process by appeal or otherwise is provided, cannot be collaterally impeached by a party except for want of jurisdiction of the subject-matter. Smith v. Knowlton,11 N.H. 191; Morse v. Presby, 25 N.H. 299, 303; Gurnsey v. Edwards,26 N.H. 224, 229; State v. Richmond, 26 N.H. 232; Nichols v. Smith,26 N.H. 298, 300; State v. Canterbury, 28 N.H. 195, 224; Claggett v. Simes,31 N.H. 56; Haywood v. Charlestown, 34 N.H. 23; State v. Rye,35 N.H. 368; Gay v. Smith, 38 N.H. 171; Kimball v. Fisk,39 N.H. 110; State v. Towle, 42 N.H. 540; State v. Shattuck, 45 N.H. 205, 211; Boody v. Watson, 64 N.H. 162, 184; Hendrick v. Whittemore, 105 Mass. 23; and the cases before cited. It is not now necessary to *Page 425 consider whether, consistently with this result, the decision in Davis v. Hazen, 61 N.H. 383, can be upheld.
Judgment for the defendant.
ALLEN, J., did not sit: the others concurred.