
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1803.
    Harrison’s Administrators v. Executor of Taylor
    A judgment against an executor, who has made himself liable cle bonis propriis, by pleading a false plea, may be amended at a subsequent term, by adding the words, “to be levied, de bonis testatoris, si <fc. et si non, de bonis propriis.”
    
    At the court of Kershaw district, a motion was made to amend S judgment, which was refused, Johnson, J., presiding. The motion in this court was to reverse the decision of the district court. The case was, that plaintiffs had sued on a bond given by defendant’s testator. Defendant pleaded payment since intestate’s death. Plaintiff had a verdict; and defendant, by his false plea, which he knew to be false, had made himself responsible for the debt, do bonis propriis. The judgment, however, bad been entered up by mistake, without specifying in what manner the debt should be let vied : and (he motion therefore was to supply this defect, by adding these words, “ to be levied of the goods and chattels of the said J. T. deceased, in the hands of the said J. T. to be adminis., tered, if lie hath so much in his hands to be administered ; and if he hath not, then the said debt, &x. to be levied of the proper goode and chattels of the said J. T.” The Judge refused the motion, thinking that it was not to be considered as the misprision of the clerk, but an error of the court itself in rendering judgment, and not amendable at a subsequent term.
   The Court, however,

Waties, Bay, Trezevant, and Bhe. yard, Justices,

after hearing Branding for the motion, and Stark cintra, upon the authority of the cases cited from 5 Bur. 2730, 1 Ld. Raym. 182, 3 T. R. 349, and 6 T. R. 7, were fully of op.con that the judgment ought to be amended, and granted leave accordingly.

Note. — See 2 Bl. Rep. 918; Sayer’s Rep. 12; 3 Wils. 454; 5 Rep. 32; Lill. Prac. Reg. 76, 716, 70; Hob. 90; 8 Rep. 156; 1 Ventr 132; 2 Vin. Abr. 373, 367; 2 Saund 289; 5 Bur. 2730; Mod 689 ut see Off. Fx. 165, 172; Godphn. 199; Hayw. 219. The proper judgment, it is said, should be for so much to be levied de bonis testatoris, for that the law will not presume that there are no assets when admitted by the executor, until the return of the sheriff. The costs of the first judgment are to be levied de bonis propriis; because, baring assets, the executor should have paid Üi. debt without suit: and the judgment to have execution de bonis propriis for the principal, is always a subsequent judgment, founded on a sei.fa, But a set./a seems to be a useless proceedure, and can answer no end but delay; and the issuing a special fa., upon a return of nulla bona, is sanctioned by Off hxors. 167, and 5 Rep. 32. Therefore, it is presumed the former can never be required. See Hayw. 301.  