( 204 )
My 7.
WoodKenton J.
However desirable it may be, in view of the provision in section403 of the Code that “ when an action abates …. no freshaction shall be‘brought on the same cause of action,” that the Courtshould not act ex mero motu under section 402, it would be difficult,
I think, for us to hold in the absence of any language in section 402itself expressly or impliedly imposing any such fetter on the Court,that if it did make an order of abatement ex mero motu, that orderwould be bad. But it is not necessary to decide that point now.For I confess that I am unable to get over the difficulty created byMr. Wadsworth’s alternative contention.
The appellants had within the meaning of section 402 taken everystep incumbent upon them with a view to the prosecution of theaction. I think that when that section uses the word “ necessary,”it means “ rendered necessary by some positive requirement of thelaw.” We ought not to interpret it as if the section ran “ withouttaking any steps to prosecute the action which a prudent manwould take under the circumstances.” In the present case theappellants had done all that the law required of them. The dutyof fixing the day of trial rested, under section 80 of the CivilProcedure Code, on the Court (see Fernando v. Curera,1 and of.Ponnampalam v. Canagasabay 2).
With great reluctance I have come to the conclusion that the'decree appealed against should be set aside, the order of October 24,1903, vacated, and the appellants allowed to proceed with theiraction. All costs should be costs in the cause.
Hutchinson C.J.—I agree.
Appeal allowed.
• 11896) 3 N. L. R. 29.
* (1896) 2 N. L. R. 38.