
    H. R. W. Hill vs. George W. Henderson.
    The statute of this state, which provides that an executor or administrator shall not be chargeable beyond the assets of the testator or intestate, by reason of any omission or mistake in pleading, applies as well to executors de son tort as to rightful exeoutors.
    In an action, therefore, against an executor de son tort, who has omitted to plead plene administravit, it is error to take a judgment against him to be levied of the goods and chattels of the testator and unadministered; and if none, then of his own proper goods and chattels; the judgment should be as in the ordinary form against rightful executors.
    Where a cause is instituted in the state court by a citizen of this state against a non-resident, and the latter apply according to the act of Congress for its removal to the United States court, and on its being refused, appeals to this court, which requires it to be done on the execution of the proper bond, and upon the return of the case to the state court, the non-resident omit to give the bond, the state court will have jurisdiction to go on and try the case.
    In error from the circuit court of Rankin county; Hon. Wiley P. Harris, judge.
    The facts are stated in the opinion.
    
      W. Yerger, for plaintiff in error.
    
      
      A. H. Handy, for the defendant in error.
    Hill having failed for more than two years to execute the bond, and the cause having been remanded to the circuit court of Rankin county, it was proper for that court to consider him as having waived his right to remove it, and to proceed to determine it, for otherwise it was only necessary for Hill to fail ever to give the bond, and the causo would 'stand perpetually enjoined. Gibson v. Johnson, Pet. O. C. Rep. 44; Conk. Tr. 59.
    There is no error in the form of the judgment. The action was against Hill, as executor de son tort, to which the only plea was ne unques executor, the plea of non assumpsit being struck out. Upon this issue, the verdict was for the plaintiff below, and the judgment was de bonis testatoris si, Spc., et si non, fyc., de bonis propriis. This is the proper judgment in such case. 1 Saund. Rep. 336 b, note 10, near the conclusion of the note; 2 Will, on Ex’rs, 1409, 2d American Edit. 1 lb. 1216.
    The authorities holding that the executor is not liable to pay the judgment out of his own property, if there be a failure of assets to be found, are where rightful executors were sued. But here the suit is against Hill, as executor de son tort, as appears by the indorsement on the writ, although the declaration is against him as executor generally, which is the-proper form of proceeding against an executor de son tort. Com. Dig. tit. Administrator C. 3. The propriety of the judgment in point of form is clearly recognized in this same case by Judge Sharkey, 6 S. & M. 355, and is fully supported by the authorities above cited.
   Mr. Justice Clayton

delivered the opinion of the court. ‘

This case was formerly in this court, when it was remanded with directions that it should be transferred to the circuit court of the United States, upon Hill’s complying with the act of Congress. See 6 S. & M. 351. This order was not complied with on the part of Hill, and of consequence the case remained in the state court for trial.

The suit was against Hill in reality as executor de son tort, of Francis Tidwell, deceased, though the pleadings only speak of him as a rightful executor. A judgment was rendered against him to be levied of the goods and chattels which were of the said Francis Tidwell, at the time of his death in the hands of the said defendant remaining to be administered, if so much thereof in his hands to be administered, if not, then of his own proper goods and chattels.

There is no bill of exceptions in the case. The only question therefore is, as to the propriety of this form of judgment. By the common law, an executor de son tort is only liable as a rightful executor would be, except that the former cannot retain for his own debt. He is consequently not liable beyond the assets which came to his hands, if he plead properly. He may therefore plead plena administravit. See 1 Williams on Ex’rs. 154; Glenn v. Smith, 2 Gill & Johns. 493. In this state no executor or administrator shall be chargeable beyond the assets of the testator or intestate, by reason of any omission or mistake in pleading. Hutch. Code, 657, § 57. We think this statute extends to executors de son tort, and that they are only liable for the amount of assets they may have received, notwithstanding an omission or failure to plead.

This judgment consequently is erroneous, because it authorizes an execution against the proper goods and chattels of Hill in the event there should not be assets of the decedent in his hands, sufficient to pay the judgment. There is nothing in the former decision in this case, which requires us to sanction this form of judgment.

■ For this error, the judgment will be reversed and entered here against the plaintiff in error, to be levied of the goods and chattels of the deceased which came to his haiids, and which have not been administered heretofore according to law. Hill v. Robinson, 2 S. & M. 544.

Judgment reversed.

A re-argument was applied for, but not granted.  