In Scots Law this maxim does not apply in its ordinary sense, for the right of action transmits against the representatives of a wrong-doer, in so far as they benefit by the succession. Also a claim for damages transmits to the representatives of the sufferer. This claim must be distinguished from the right of a widow or children or other dependants to sue for damages for the loss of a parent or relative, and it is doubtful whether it would include solatium or be confined to patrimonial loss.
ACTION—King's Bench Division.—The best way to obtain a view of the practice in this court will be to follow a supposed action, ii which each party takes advantage, in order to develop his case, of the opportunities offered by the rules of court. The action most interesting to, and pro fitable for a man of business tc. consider, will undoubtedly be one for a liquidated claim, such as debt. An action of this class we will now proceed to outline. The creditor will be plaintiff' and the debtor defendant. The plaintiff having probably written to the defendant demanding payment, and not having received any reply, commences the action by the issue of a writ. As he believes that the defendant has no answer to his claim, he proceeds in such a way as will enable him to obtain judgment as quickly as possible. To do this he places his claim on the writ in the form of a special endorse. meat, and not a general endorsement.
The advantage of the special endorsement is that, though the defendant should enter an appearance with a view to fighting the case, the plaintiff may apply under Order XIV. of the rules of the Supreme Court for final judgment for the amount he claims. This will be granted, unless the defendant satisfies the court, usually by affidavit, that he has a rod defence to the action on the merits ; tar discloses such facts as the court may deem sufficient to entitle him to defend. Another advantage of the special endorsement is that the plaintiff will not be required to deliver any further statement of claim, thereby saving considerable time and expense. Had the cause of action been damages, or other unliquidatcd demand, the proceedings would not have come within the operation of Order XIV., a knowledge of the effect of which is to the business man most important. The practice in an action for damages is the same as in an action for debt, except that there is no special endorsement for the purposes of Order XIV., but a statement of claim after appearance instead.
Having issued his writ for debt, the plaintiff must proceed to its service. If the defendant is abroad, the plaintiff should obtain an order of the court, and only serve notice of the writ. When defendant is within the jurisdiction, he should be served with the writ personally ; but should the defendant's solicitor be willing, it may be left with him, upon his giving an undertaking to appear. If, however, the defendant is evading service, the plaintiff should obtain an order for substituted service. 'rhe defendant being thus duly served, will, within eight days from service, enter an appearance ; failing which, the plaintiff, upon filing an affidavit of service of the writ, can sign judgment for the amountiof the debt and costs. But the defendant having appeared, the plaintiff will make an affidavit proving his claim, take out a summons for judgment under Order XIV., and serve same by leaving copies of the affidavit and summon,: with the defendant's solicitor, or if the defendant has appeared in person, ;.?, without a solicitor, by leaving the copies at the defendant's address. After the expiration of four clear days therefrom, the summons will be heard in Chambers before a Master. Then if the defendant, by affidavit, can satisfy the Master that he has a good defence to the action, he will obtain leave to defend, which may be conditional or unconditional.
To that affidavit of the defendant the plaintiff may file another in reply combating, so far as he can, the defendant's case. Assuming that the Master gives leave to defend, he will at the same time make an order of directions. This order may be that the case is to go to trial without pleadings ; or is to be set down for trial as a short cause ; or be remitted for trial to a County Court. If the order is for either of these courses, the action will be tried within a very short time, and probably without any complicated intermediate procedure. But should the case suggest much detail or importance, it will go to trial in the usual way ; that is, the directions will be that defendant may deliver a defence, and counter-claim if he wishes, and the plaintiff may reply. And also that either party may have discovery. The place of trial will be appointed, and the question of a jury decided. The jury may be either special or common, but if special it will cost the party who claims it twelve guineas.