p. 502Lansing against The Executrix of Lansing.Headnote
Where an executor or administrator pleads a false plea, the judgment is de bonis testatoris, si non de bonis pro- priis, &c. and, under the statute, if sufficient goods and chattels cannot be found, then of the lands and tenements, &c. And where the judgment, in such a case, was entered, de bonis only; it was allowed, after return of the ji. fa., to be amended, so that the execution might be against (he lands and tenements also.. THIS was an action of assumpsit. The defendant pleaded ne unques executrix, &c. on which a verdict was found against her, and a judgment ivas entered thereon for the plaintiff, for 260 dollars and 45 cents, to be levied of the goods and chattels of the testator, if so much remained in the hands of the defendant, to be administered ; if not sufficient, &c. then to be levied of the proper goods and chattels of the defendant. A Ji. Ja’. was issued according to the terms of the judgment, on which the sheriff returned in Map last, that he had made 50 dollars and 69 cents, and nulla bona as to the residue.
Chever, for the plaintiff, moved for leave to amend the record and execution, by adding, in the judgment, the words “ lands and tenements.” He said, that the omission in the record was considered a clerical mistake, and amendable, (1 Saund. 336. note 10. 5 Burr. 2730.)
J. Van Rensselaer, contra,
said, that the judgment in this
p. 503tesiatoris, si non, &c. de bonis propriis, it inds and tenements of the executrix. If the defendant plead ne unques executor, &c. and it is found against him, the judgment is, as in this case, de bonis testa-toris, et si non, de bonis propriis. [Toiler’s Law of Executors, 463,464. 1 Saund. 336. a. 336.b. note.) But this is a motion to make it a judgment of the proper lands and tenements, as well as of the proper goods and chattels of the executrix»
It is settled, that where an executor or administrator pleads a false plea, the judgment is de bonis tes-taioris, si non, de bonis propriis, &c. The sheriff has returned, that he has made of the goods, &cc. fifty dollars, and nulla bona as to the residue. This is, undoubtedly, according to the English practice. But our statute (sess. 36. ch. 50. s. 7. 1 JV. R. L. 509.) subjects the lands and tenements, as well as the goods and chattels of the debtor, to execution. We, therefore, grant the motion to amend, on payment of costs, so as to command the sheriff to make the debt of the goods and chattels of the executrix, si non, &c. de bonis propriis, &c. and if sufficient goods and chattels of the executrix cannot be found, &c. that, then, he cause the debt to be made of the lands and tenements of the executrix; saving, however, the rights of any subsequent incumbrancer.
Motion granted.