CAVE & CO. v. ERSKINE.

Action for goods sold and delivered-Prescription-Institution of suit-Order that suit do abate-Civil Procedure Code, ss. 402 and 452-Irregularity of such order-Restoration of suit to the cause roll-Commencement of suit.

The filing of a plaint in Court is an act of the plaintiff by which he signifies that he has commenced an action against the defendant, and the summons thereafter gives him the exact date on which the action was instituted or commenced.

There is no distinction between the expressions " institution of action" and " commencement of suit. "

Section 402 of the Civil Procedure Code does not empower the Court ex mero motu to make an order of abatement of a suit. It can be made-only on the application of the defendant and due notice to the plaintiff.

Where the Fiscal has not been able to serve summons on the defendant, and no blame is attachable to the plaintiff for such non-service, it is not open to the Court to order the suit to abate.

An action for goods sold and delivered up to November, 1899, filed on 12th March, 1900, and improperly ordered to abate and then restored to the rol