People v. M'Donald

1 Cow. 189

• Court: New York Supreme Court
• Decided: August 15, 1823
• Status: Published

Opinion

Curia.

■ The award of execution de bonis propriis, without the si non clause, is a clerical mistake of the attorney. The record is no doubt erroneous ; for though the administratrix may have been liable, it was only in default of assets belonging to the estate of the intestate. Where the administrator is liable, the proper form of entry is de bonis intestatoris, si, fyc. et de bonis propriis, si non, fyc. This is conformable to the case cited by the counsel for the defendants. In that case the Court allowed this amendment even after error brought, and in nullo est erratum pleaded. We, accordingly, allow the amendment as applied for. This disposes of the application to discontinue, or stay the suits. To that part of the application which seeks a stay, till security for costs are given, it is a sufficient answer, that the relator is before the Court, and liable for costs ; and, nothing appearing that he is without our jurisdiction, they may be collected by process of attachment. But it was wrong to prosecute two several suits upon the bond. One would have answered every possible purpose ; and we order the suits to be consolidated, with leave for the plaintiff to declare de novo. We also direct the assignment of breaches, grounded on the omission to file an inventory, to be stricken out. No injury, from that omission, is pretended. And to retain these breaches, would be to sanction a recovery of nominal damages, to no manner of purpose beneficial to the plaintiff, and to vex the defendants with costs, unnecessarily.

Rule accordingly.