Good J:

This is a motion to set aside the judgment of Buhagiar, J given on 3 July 1954, in this suit; the judgment was for the sum of $28,594.71 with interest and costs, and was a judgment in default of defence.

The defendant, who is the applicant in the present proceedings, was sued as Administrator of the estate of his deceased father, but the judgment was expressed to be given against "the defendant" simpliciter and not in his representative capacity.The applicant's ground for making the present application is that the judgment was irregular as it ought to have been a judgment de bonis testatoris and not a judgment de bonis propriis.

There is abundant authority for the contrary proposition - Labouchere v. Tupper, 14 ER 670 Farhall v. Farhall 7 Ch. App 123 and Ang Chee Seng v. Tan Kee Swee [1935] MLJ 245.

Mr. Arulanandom, for the applicant, relied on Evans v. Bartlam [1937] 2 All ER 646 as authority in support of the absolute discretion of the Court to make the order prayed for, and he relied on Atwood v. Chichester [1878] 3 QBD 722 as authority for the proposition that lapse of time is no bar to this application. I agree with him so far as the effect of Atwood v. Chinches