#### Frederick L. Wells, Administrator, v. William C. Knuth.

Gen. No. 4,491.

1. Declaration—within what time plaintiff may file. The plaintiff, bv virtue of section 17 of the Practice Act, is entitled to file his declaration at any time prior to ten days before the second term of court to which the summons is made returnable.

Action of trespass on the case. Error to the Circuit Court of Du Page County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the April term, 1905.

Reversed and remanded.

Opinion filed August 1, 1905.

Arthur B. Wells and John M. Blakeley, for plaintiff in error.

*94George E. Dawson, for defendant in error.

Mr. Justice Dibell

delivered the opinion of the court.

On November 6, 1899, Frederick L. Wells, as administrator of the estate of Frederick O. Wells, deceased, sued out a summons in the court below against William C. Knuth, in an action of trespass on the case upon promises, which was duly served upon the defendant on the same day. On March 23, 1900, at the March term of the court, the suit was' dismissed on call for want of prosecution. This is a writ of error by the plaintiff to reverse that judgment.

By the statute, the terms of the Circuit Court in the county of Du Page are fixed to be held on the first Monday of March and the first Monday of October. The summons in this case was returnable to the March term, 1900. Under section 17 of the Practice Act, the plaintiff had a right to file his declaration ten days before the second term of the court; that is, ten days before the October term, A. D. 1900. Plaintiff had not filed a declaration. The court, therefore, had no authority to dismiss the suit for want of prosecution. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.