This was a case in which the plaintiff sued the defendant to recover damages for alleged sland-
Mr. P. W. Goldring appeared for the plaintiff, and Mr. F. Lipson Ward for the defence.
Mr, Goldring said he appeared for the late Mr. Home and stated that in accordance with the well known legal maxim the action was now dead.
Mr. Ward applied for his Lordship to order that the action should be struck out with costs. Under the old precedents if a plaintiff died -before action brought and his representative or someone purporting to represent him, carried on the case, the defendant would be able to plead an abatement and could, of course, get judgement against whoever was responsible for bringing the action. Where the plaintiff died after action brought, but before judgement, under the old practice, the action being brought on for trial, the Court would enter a non-suit and the defendant would be entitled to his costs. The non-suit had now disappeared from the practice of the Courts and the action was now struck out where the plaintiff did not appear. He had looked up the authorities and had not found one case bearing upon the point. but he thought he could press that in favour of his point that where a case was abated through the death of the plaintiff the defendant was entitied to his costs.
Counsel argued the point at considerable len=th and Mr. Goldring opposed the application on the crannd that the action was now dead, that execution could not be entererd and that if the order for costs did lie within his Lordship's discretion. he. counsel, was not able to produce evidence in order to persuade his Lordship how that discretion should be used.
His Lordship said:—This is a interesting argument, but I think I am sufficiently clear in my mind not to delay giving what I think to be the right judgement on it. Tt seems to me when an action abates owing to the death of a party the action is gone. Under the circumstane: is far as I can see. have no jurisdiction to give the costs of the action to either side. Under those circumstances there will be no order as to costs.
Text read from the printed page and cleaned; old type leaves the occasional error.