sentative character, and only denies the demand, if the CHAP. XI. plaintiff prove it, the judgment will be that the demand fendant admits and costs shall be levied de bonis testatoris, et si non, &c., his character as to the costs, de bonis propriis (i). and denies and alleges administration. Where the defendant admits his representative cha- demand; racter, but denies the demand, and alleges a total or 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 (l). 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 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). (i) Rule 209, Form 112, App. (k) Rule 210, Form 113, App. (1) Rule 211, Form 114, App. (m) Rule 212, Form 115, App. PART I. In cases not In actions against executors or administrators for which provision is not especially made by the rules of practice provided for by 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 nou, de bonis propriis (p). rules. Notice of assets. 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 (q). This has been provided for by a rule of practice (r), 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. (p) Rule 216. (q) Ellis v. Watt, 8 C. B. 614; S. C., 19 L. J., C. P. 113. (r) See Rule 214 of present rules, which is identical with Rule 185 of 1851. See Form of Summons, 117, App. CHAPTER XII. PROCEEDINGS TO MAKE JUDGMENT AVAILABLE FOR AND AGAINST PERSONS NOT PARTIES. Married Woman. Party. Execution by Person not a In Actions on Bonds within Execution against Person not a Death of Party. Execution by Person not a Party.]-Execution may issue on behalf of any person not a party to the suit by leave of the registrar, upon proof of title to the benefit of the judgment and upon substitution of the name of the new plaintiff, together with a statement of his derivative title for that of the original plaintiff, and the registrar shall give notice of such substitution to the defendant by post, and execution shall not issue upon the judgment until the expiration of six clear days after the posting of the notice (a). Execution against Person not a Party.]—Execution on a judgment may not issue against any person not a party to a suit without a plaint and summons upon the judgment, the proceedings in which must be the same as in ordinary cases (b). Death of Party.]-Where a judgment has been given Death of party. against a person deceased, his executors or administrators may in the same manner be sued upon the judgment (c). Where one or more of several plaintiffs or defendants dies before judgment, the suit will not abate, if the cause of action survive to or against the surviving parties (d). Where one or more of several plaintiffs or defendants dies after judgment, proceedings thereon may be taken by the survivors or survivor or against the survivors or survivor, without leave of the court (e). PART I. Married woman. In actions on bonds within 8 & 9 Will. 3, c. 11. Jury. Married Woman.]—Where a married woman is sued as a feme sole, and she obtains judgment on the ground of coverture, proceedings may be taken thereon, in the name of the wife, at the instance of the husband, without leave of the court (ƒ). In Actions on Bonds within 8 & 9 Will. 3, c. 11.]-In actions for penalties to secure the performance of covenants, within the meaning of 8 & 9 Will. 3, c. 11, where judgment has been entered for the amount of the penalty, and execution has issued for the amount of damages to which the plaintiff is entitled; in case of subsequent breaches the plaintiff may take proceedings in the nature of a sci. fa. on such judgment in the form given in the schedule to the rules, and must deliver particulars of such subsequent breaches, as in the case of an action on a bond (g); upon which the practice in proceedings in the nature of a sci. fa. is adopted (h). Jury.]-In all proceedings in the nature of a scire facias, a jury may be summoned in the same manner and under the like restrictions as are provided by sects. 70, 71, 72 and 73 of the 9 & 10 Vict. c. 95 (i). (ƒ) Rule 200. (g) See ante, pp. 72 and 144. (h) Rule 44. (i) Rule 106. See ante, p. 89. CHAPTER XIII. ACTIONS TO RECOVER THE POSSESSION OF SMALL 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 501. 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). 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. 426. 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 50%, by the year;" accordingly it was held that if the rent did not exceed 50l. per annum, |