SPROULE J. Plaintiff issued a writ of summons on 8th January, 1927, claiming damages for breach of an agreement said to have been made on 3rd February, 1926. Appearance was entered on 20th January, 1927. Plaintiff's Statement of Claim should therefore have been filed on or before 10th February.

Plaintiff, however, took no step till 4th March, when she merely changed her solicitors. Defendant, after correspondence, being unable to stir plaintiff to filing a Statement of Claim, took out a summons on 21st March, praying that the suit might be dismissed for want of prosecution.

This summons was heard by me on 25th March. I ordered that the suit be dismissed for want of prosecution, but suspended the order for seven days to allow plaintiff that period within which to file her Statement of Claim.

My recollection is that Mr. Taylor was satisfied with the period allowed and confident of being able to deliver his pleading in time.

No Statement of Claim was filed, however, nor was any application made, within the seven days, to extend the time for filing. Plaintiff's suit thus became defunct on 1st April.

No appeal from my order of 25th March has been entered and no application for extension of time for any such appeal made.

On 20th April, however, plaintiff applied to me by summons in Chambers to set aside my order of 25th March, restore her suit, and consolidate it with another Suit, No. 36 of 1927, in which the present defendant is plaintiff and the present plaintiff defendant. No Statement of Claim had been filed, and the sole excuse alleged for continued default was in paragraph 4 of the plaintiff's affidavit of 20th April in which she stated:-

"I was not informed by my Attorney that he did not instruct my solicitors to file and deliver a statement of claim."

This excuse, of course, has no merits at all. Quite apart from that, my attention was called by Mr. Hogan at the hearing of the summons, to O. 27, r. 1, and the cases on this subject cited on pp. 434 and 435 of the Annual practice, 1927, under the heading "Order to dismiss for want of Prosecution". It was made very clear to me that I had no jurisdiction to restore the defunct suit or enlarge the time allowed by me even by consent of the parties.

I therefore dismissed the summons with costs assessed at $10. This was on 25th April. Plaintiff waited till 13th May, and then applied to me for a certificate enabling her to appeal against my order of 25th April. I certified that I required no further argument and now file these grounds of my decision.

The law is clear enough that the suit was dead and that I could not resuscitate it on 25th April. In Whistler v. Hancock 3 QBD 83 just such an order as mine of 25th March was made, the week expiring on 22nd December, 1877. After that date the master gave further time for delivery of the statement of claim. Fry J on appeal set the master's order aside as made without jurisdiction, the suit being dead. Fry J was upheld on appeal. Manisty J. in his judgment on appeal added the observation -

"The mistake on the part of the plaintiff was in not applying within the week to set aside or vary the order of 15th December."

A note to Whistler v. Hancock states that in Wallis v. Hepburn the same point arose in the Exchequer Division and the decision in Whistler v. Hancock was followed by Cleasby B. and Hawkins J. after consulting the Judges of the Queen's Bench Division.

Manisty J.'s observation, however, encouraged the plaintiff in King v. Davenport 4 QBD 402 to revive the point, he being further encourged thereto by the circumstance that the application for further time in that case was made within the first period allowed and was only adjourned till a date beyond the period by consent of the parties. The master on this later date gave seven days longer for the filing of the statement of claim. Pollock B. rescinded the master's order on the ground that the master had no jurisdiction, the suit being dead. Pollock B. was uphel