How they Sue and are Sued.]-Executors and adminis- How they sue trators may sue and be sued in like manner as a party in and are sued. his own right (a). Not that their rights of action are extended, but that in so far as they may already sue, the manner of their suing is the same as if they sued in their own right. Suggestion of Devastavit.]-Where it is suspected that Suggestion of an executor has been guilty of a devastavit, in order to devastavit. avoid the expense and delay attendant upon obtaining a judgment and execution in the first instance against the goods of the deceased, and then should the bailiff return a devastavit suing out a writ of execution de bonis propriis, the plaintiff may charge in the summons, in the form given in the schedule to the rules, that the defendant has assets and has wasted them (b). (a) 9 & 10 Vict. c. 95, s. 66, p. 411. (b) Rule 206. See note to Form 7, App. PART III. Payment into Court.]-Where a defendant admits his Payment into representative character and the plaintiff's demand, and that he is chargeable with any sum in respect of assets, he may pay the same into court, subject to the rules relating to payment into court in other cases (c). court. Non-appear ance at trial. Judgment against. Where devastavit. Where character denied or release pleaded. Non-Appearance at Trial.]-Where an executor or administrator, plaintiff, or defendant, does not appear on the day of hearing, the provisions of sects. 79 and 80 of the 9 & 10 Vict. c. 95, and of sect. 10 of the 13 & 14 Vict. c. 61, apply respectively, subject to the rules applicable to executors or administrators suing or being sued (d). Judgment against.]—The ordinary judgment against executors and administrators is to pay the debt and costs to be levied out of the assets of the testator, if the defendant have so much; but if not, then the costs out of the defendant's own goods (e). If a plaintiff executor fails the judgment is the same as in ordinary actions; but the costs will, unless the court shall otherwise order, be awarded in favour of the defendant, and be levied de bonis propriis (f). In all cases where the defendant is charged in the summons with wasting assets, if the court is of opinion that the defendant has wasted his assets, the judgment will be, that the debt or damage and costs shall be levied de bonis testatoris, si, &c., et si non, de bonis propriis, and the nonpayment of the amount of the demand immediately, on the court finding such demand to be correct, and that the defendant is chargeable in respect of assets, is conclusive evidence of wasting to the amount with which he is so chargeable (g). Where an executor or administrator does not appear, or, appearing, denies his representative character, or alleges a release to himself of the demand, whether he (c) Rule 215. See mode of pay- See (e) This is according to the prac- common law; but by sect. 66 of 9 (g) Rule 207. Form 79, App. See also Winch v. Winch, 22 L. J., C. P. 104, where it was held that the county court has jurisdiction to try a devastavit. insists on any other ground of defence or not, and the judgment of the court is in favour of the plaintiff, it will be that the amount found to be due and costs shall be levied de bonis testatoris, si, &c., et si non, de bonis propriis (h). CHAP. I. his character Where an executor or administrator admits his repre- Where desentative character, and only denies the demand, if the fendant admits plaintiff prove it, the judgment will be that the demand and denies and costs shall be levied de bonis testatoris, et si non, &c., demand; as to the costs, de bonis propriis (i). Where the defendant admits his representative cha- and alleges racter, but denies the demand, and alleges a total or administration. partial administration of assets, and the plaintiff proves his demand, and the defendant proves the administration alleged, the judgment will be to levy the costs of proving the demand de bonis testatoris, si, &c., et si non, de bonis propriis; and as to the whole or residue of his demand, judgment of assets, quando acciderint, and the plaintiff must pay defendant's costs of proving the administration of assets (k). Where the defendant admits his representative character, but denies the demand, and alleges a total or partial administration of assets, and the plaintiff proves his demand, but the defendant does not prove the administration alleged, the judgment will be to levy the amount of the demand, if such amount of assets is shown to have come to the hands of the defendant, or such amount as is shown to have come to them, and costs, de bonis testatoris, si, &c., et si non, as to the costs, de bonis propriis, and as to the residue of the demand, if any, judgment of assets, quando acciderint (1). Where a defendant admits his representative character and the plaintiff's demand, but alleges a total or partial administration of the assets, and proves the administration alleged, the judgment will be for assets quando acciderint, and the plaintiff must pay the defendant's costs of proving the administration of assets (m). Where a defendant admits his representative character and the plaintiff's demand, but alleges a total or partial administration of the assets, but does not prove the administration alleged, and has not established any other (h) Rule 208, Forms, App. (1) Rule 211, Form 114, App. PART III. In cases not provided for by rules. Notice of assets. ground of defence, the judgment will be to levy the amount of the demand, if so much assets is shown to have come to the defendant's hands, or so much as is shown to have come to his hands, and costs, de bonis testatoris, si, &c., et si non, as to the costs, de bonis propriis, and as to the residue of the demand, if any, judgment of assets, quando acciderint (n). In actions against executors or administrators for which provision is not especially made by the rules of practice if the defendant fails as to any of his defences, the judgment will be for the plaintiff as to his costs of disproving such defence, and such costs are to be levied de bonis testatoris, si, &c., et si non, de bonis propriis (o). Notice of Assets.]-Previous to the framing of the rules of practice of 1851, it was held by the Court of Common Pleas, that, if, after a plea of plene administravit and judgment of assets quando acciderint, the defendant receives assets, the plaintiff should proceed by a summons stating the judgment quando, and suggesting assets, and that a suggestion of a devastavit would be wrong (p). This has been provided for by a rule of practice (9), which directs that, where judgment has been given against an executor or administrator that the amount be levied upon assets of the deceased quando acciderint, the plaintiff or his personal representative may issue a summons in the form in the schedule to the rules; and, if it appears that assets have come to the hands of the executor or administrator since the judgment, the court may order that the debt, damages and costs be levied, de bonis testatoris, si, &c., et si non, as to the costs, de bonis propriis. The party applying may also charge in his notice that the executor or administrator has wasted the goods of the testator or intestate, in the same manner as in an original summons, and the provisions relating to that apply to such inquiry. The court may, if it appears that the party charged has wasted the assets, direct a levy to be made as to the debt and costs, de bonis testatoris, si, &c., et si non, de bonis propriis. (n) Rule 213, Form 116, App. (p) Ellis v. Watt, 8 C. B. 614; (q) See Rule 214 of present rnles which is identical with Rule 185 of 1851. See Form of Summons, 117, App. When Action lies.]-When the term and interest of the When action tenant of any corporeal hereditament where neither the lies. value of the premises, nor the rent payable in respect of the tenancy shall have exceeded 50l. by the year, and on which no fine or premium has been paid, has expired, or been duly determined by a legal notice to quit; and the tenant, or any person holding or claiming by, through, or under him, neglects or refuses to deliver up possession of the premises, the landlord may, at his option, enter a plaint for their recovery, either against the tenant or the person so neglecting or refusing (b). refusing (). If the plaint be against the (a) The powers given by the statute to the county court on this head do not oust the jurisdiction given by 1 & 2 Vict. c. 74, under which act magistrates possess similar powers, in cases where the rent does not exceed 201. (b) 19 & 20 Vict. c. 108, s. 50, p. 447. In sect. 122 of the 9 & 10 Vict. c. 95, now repealed, the words used were, "where the value of the premises or the rent payable did not exceed the sum of 507. by the year;" accordingly it was held that if the P.N. rent did not exceed 507. per annum, Q |