
    GORMLY AND BELL v. SKINNER’S EXECUTORS.
    Removed executor — substitution—plea puis darrein — continuance—abatement—judgment •against administrators.
    When an executor pending a suit, is removed by the probate court and a successor is appointed, the court will not substitute him as defendant; the statute does not reach the case.
    The removal of the defendant, and appointment of an administrator de bonis non takes away the legal right to defend, and if ple&ded will abate the suit.
    The judgment against executors and administrators can only be de bonis, etc.
    
      Card, for the plaintiff,
    moved to substitute the administrator de bonis non instead of the executor defendant: he showed that since the last term the defendant has been removed from being executor for malconduct, and an administi’ator de bonis appointed in his stead, who has qualified. He cited 29 O. L. 235.
   By the Court.

The practice act, (29 O. L. 70) to prevent the abatement of suits, provides, that where either party dies pending suit, that his executor or administrator may be made defendant in his stead and the suit progress. No provision is found to meet a case like the one before us — the act cited by counsel only authorizes the new administration to sue the removed one for assets in his hands, etc. Wc see no good reason why the legislature should not provide for this class of cases to prevent abatement, but we have no power to supply the omission.

The motion is denied.

The defendant then pleaded his removal and the appointment of an administrator, &c. puis darrien continuance, which was demurred to and joined.

J. H. Paine, for the plaintiff.

Card, contra.

Br the Court. We have just decided that we were without power to substitute the administrator as defendant in place of the removed executor. In the case of a removed executor, he is required to deliver over to his successor the assets of the estate. The law provides that in suits against executors, &c. no judgment shall bo rendered against them, except de bonis testatoris: (29 O. L. 353; 5 O. R. 88.) If the removed executor has delivered over the assets, he has no assets to reach: but his removal prevents him from representing the estate — even if he have assets,he has no legal authority to defend for the estate — his right is taken away from him by his removal. We think the plea a good one, and overrule the demurrer.

The plaintiff then became nonsuit,  