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in such cases, before these latter writs can issue.(1) If the judgment is, that both debt and costs be levied out of the goods of the deceased, if any, and, failing these, out of those of the executor or administrator, which is the judgment in case of a plea being pleaded false to the knowledge of the defendant, then no previous return of the devastavit is necessary, but a fi. fa. issues de bonis testatoris, et si non, &c., de bonis propriis; and if the sheriff returns nulla bona nec testatoris nec propria, a ca. sa. may issue directly against the executor. Where the judgment was de bonis testatoris, and a fi. fa. has issued accordingly, if the sheriff has returned nulla bona only, this will be evidence of a devastavit.(2) The plaintiff may then bring an action of debt on the judgment, stating in the declaration the judgment, the writ, and the return, and, if successful, he may then sue out execution directly against the goods or person of the defendant, as in ordinary cases. Or, instead of bringing an action on the judgment, the plaintiff may, after giving the same notice as in case of a writ of inquiry,(3) sue out a scire fieri inquiry, which is a writ setting forth the fi. fa. and nulla bona, and suggesting that the executor has wasted the goods, and commanding the sheriff to inquire by a jury if this is so, and thereupon to warn the defendant to show cause why execution should not issue against his own goods.(*) The defendant cannot plead either to the action on the judgment de bonis testatoris, or to the scire fieri inquiry, plene administravit,(3) and he is liable to pay costs of the sci. fi.(®)

Form of fi. fa. on the Judgment (ante, p. 663.)

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you enter the same, and of the goods and chattels in your bailiwick, which were of E. F., deceased, at the time of his death, in the hands of C. D., executor of, &c. [or administrator of, &c.] to be administered, you cause to be made £ which A. B., lately, &c., on which day the judgment aforesaid was entered up, if the said C. D. hath so much thereof in his hands to be administered, and if he hath not so much thereof in his hands to be administered, then that you omit not, by reason of any liberty of your county, but that you enter the same and cause to be levied of the proper goods and chattels of the

(1) Ward v. Thomas, 1 Cr. & M. 532; 2 Dowl. 87.

(2) Leonard v. Simpson, 1 Hodg. 251; Cooper v. Taylor, 7 Sc. N. R. 950; Dawson v. Gregory, 7 Q. B. 756.

(3) Biron v. Philips, 1 Str. 235; Ibid, 623.

(4) See the form Merchant v. Driver, 1 Saund. R. 303; Palmer v. Waller, 1 M. & W. 689.

(5) 1 Wms. Saund. 219, c. d.; Dawson v. Gregory, 7 Q. B. 756. (6) 3 & 4 Will. 4, c. 42, s. 34.

said C. D., in your bailiwick, the sum of 60%., parcel of the said 3007., and which 60%. was, by the said court, adjudged to the said A. B. for his costs of suit in that behalf: and have you these moneys with, &c.

Return of Sheriff of a Devastavit.

but divers goods and chattels, which were of the said E. F., at the time of his death, to the value of 40l., after the death of the said E. F., came into the hands of the said C. D. to be administered, which said goods and chattels the said C. D. hath, before the coming of this writ, to me directed, eloigned, wasted and converted to his own use. The answer of S. S., Sheriff.

Scire facias on a Judgment of Assets quando acciderint.

[Commence as usual and recite the judgment.] And although judgment be thereupon given, yet execution of the said £ still remains to be made to him, the said A. B. And after the judgment aforesaid, in form aforesaid, given, divers goods and chattels, which were of the said E. F., at the time of his death, to the value of the said £ and more came and are now in the hands and possession of you, the said C. D., as executor [or administrator], as aforesaid, to be administered, whereof you may satisfy the said A. B. for the said £ as by the information of the said A. B., in our said court, we have been given to understand. Wherefore the said A. B., having humbly besought us to provide him a proper remedy in this behalf, we command you that within eight days after the service of this writ upon you, inclusive of the day of such service, you appear in our said court of Queen's Bench ["Common Pleas," or "Exchequer of Pleas"] at Westminster, to show cause why the said A. B. should not have execution against you of the said £ together with interest upon

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the same, from the on which day the judgment aforesaid was entered up, to be levied of the goods and chattels which were of the said E. F., at the time of his death, and which so as aforesaid came to and are now in the hands of you the said C. D., to be administered if it shall seem expedient for him, and further to do and receive what our said court shall then and there consider of you, the said C. D. in this behalf. And take notice, that in default of your appearing as aforesaid the said A. B. may proceed to execution.

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CHAPTER V.

IDIOTS AND LUNATICS.

Plaintiffs.]-An idiot must sue in person, but a lunatic may sue either in person or by attorney.(1) Where there is a committee, the action must nevertheless be brought in the name of the idiot or lunatic. (2) If there is no committee, the wife of a lunatic has a sufficient implied authority to sue in his name. (3) Where a person in a lucid interval sued his banker, the court refused to make the plaintiff give the defendant an indemnity on payment of the sum for which the action was brought.(*)

Defendants.]-An idiot in an action brought against him shall appear in proper person, and he who pleadeth best for him shall be admitted. (5) But a lunatic appears by attorney.(6) Where a lunatic is in an asylum, and not allowed to be seen, service of the writ of summons was allowed to be made on the keeper of the asylum;(7) and, where his wife carried on his business, one copy of the writ should also have been served on her. (®) The court has, however, no power under the C. L. P. Act, 1852, s. 17, to allow the plaintiff to proceed as if personal service of the writ of summons had been effected, unless it can be made to appear that the writ

(1) Co. Litt. 135 b; Beverley's case, 4 Rep. 124.

(2) Cocks v. Dayson, Hob. 215; Thorn v. Coward, 2 Sid. 124. (3) Rock v. Slade, 7 Dowl. 22.

(4) Tidd N. Pract. 265; Williams v. Smith, 1 Dowl. 632.

(*) Beverley's case, 4 Rep. 124.

(6) Ibid.; Humphreys v. Griffiths, 6 M. & W. 89.

(7) Ibid.; Branson v Moss, 6 M. & W. 420; 8 Dowl. 412. As to the service of a writ of ejectment in such cases, see post. Banfield v. Darell, 2 D. &. L. 4. See also Spiller v. Benson, 12 M. & W. 425.

(8) Limbert v. Hayward, 2 D. & L. 406; Mutter v. Foulkes, 5 D. & L. 557.

has come to the defendant's knowledge, or that he wilfully evades service. (1) In cases where access to the lunatic or idiot is refused, the keeper should be informed that it is his duty to allow the writ to be served, otherwise the court may grant a habeas corpus to bring up the lunatic so that service may be effected.(2)

A lunatic or idiot may be arrested and held to bail as in ordinary cases, and the court will not discharge him on the ground of idiocy or insanity, (3) or enter an exoneretur on the bail-piece.(*)

A lunatic or idiot may also be taken in execution by ca. sa. The wife has sufficient implied authority to apply for his discharge under the Small Debtors Act, 48 Geo. 3, c. 123.(5)

(1) Holmes ▾ Service, 15 C. B. 293.

(2) Ridgway v. Cannon, 23 L. T. 143, Q. B.

(3) Nutt v. Ferney, 4 T. R. 121; Kernott v. Norman, 2 Id. 390; Steel v. Alan, 2 B. & P. 362.

(*) Ibotson v. Lord Galway, 6 T. R. 133.

(5) Clay v. Bowler, 6 N. & M. 814.

CHAPTER VI.

ALIENS AND FOREIGNERS, &c., OUT OF THE JURISDICTION.

Plaintiffs.]-An alien friend may sue in the courts here notwithstanding his alienage; but an alien enemy cannot do so unless resident here by the king's licence, (1) or unless the contract sued on were under the sanction of the crown, such as a trading licence. (2) The plea of "alien enemy" must be specially pleaded.(3) Where the right of action accrued to the plaintiff when residing beyond the seas, he may either sue while residing abroad, or within the same time after his return as is given by the Statute of Limitations in cases of plaintiffs constantly residing in this country. His executors, it seems, have the same time to sue; at all events they have six years after the plaintiff's death.() In all cases where an alien permanently residing abroad, or a natural born subject residing in Scotland, Ireland, in the colonies, or anywhere out of the jurisdiction, brings an action, the court will order the plaintiff to give security for costs. (5) When an alien or foreigner sues in the courts here, he thereby submits to the jurisdiction and practice of the courts; and hence the defendant may exhibit interrogatories to him under the C. L. P. Act, 1854, s. 51.() The plaintiff is not compelled to sue in the county courts, and hence he is not within the statutes as to costs in such cases. (7)

(1) Wells v. Williams, 1 Salk. 46; Casseres v. Bell, 8 T. R. 166; Co. Litt. 129 b.; Brandon v. Nesbitt, 6 T. R. 23; O'Mealey v. WilCamp. 482.

son,

(2) Fenton v. Pearson, 15 East, 419.

(3) Harman v. Kingston, 3 Camp. 153; Alcenous v. Nigreu, 4 E. & B. 217.

(*) 21 Jas. 1, c. 16, s. 7; Townsend v. Deacon, 3 Exch. 706.

(5) See post," Security for Costs."

() Pohl v. Young, 26 L. T. 108, B. C.

(7) See Sheils v. Raits, 7 C. B. 116.

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