18 Johns. 502 | N.Y. Sup. Ct. | 1821
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.
