
    * George Leighton versus John Leighton.
    
      Practice. — In an action for a legacy against a person supposed to be executor, but who in fact was not, the plaintiff allowed to amend his declaration, so as to charge him as devisee of the real estate charged with the payment of the legacy.
    This was an action for a legacy,  The plaintiff’s father, by his last will and testament, bequeathed to him the legacy for which the action was brought. The defendant was named executor in the will, and had certain real estate devised to him, which was charged with the payment of the legacy. The action was brought against the defendant as executor, on the supposition that he had accepted the trust; but since the commencement of the action, the plaintiff having discovered that the executor had refused the trust, his counsel (Holmes) now moved fot leave to amend the declaration so as to charge the defendant as devisee.
    
      
      
         See stat. Feb. 6, 1784, sect. 17, (stat. 1783, c. 24.)
    
   The Court (Sedgwick, Sewall, and Thacher, justices) granted the motion. Afterwards, upon examining the docket, it appeared that the plaintiff had leave to amend at the last term, when only Thacher, J., was present. The Court therefore directed the clerk to make no entry of the present order; because the plaintiff might proceed to amend on the former leave granted.  