The appeal is taken from an order entered April 3d, 1872, reciting that the action had been shortly theretofore dismissed upon ex parte motion of defendants, and under a misapprehension of the facts by the Court, and directing the restoration of the cause.

1. No statement is annexed to the order in accordance with section three hundred and thirty-eight of the Practice Act, and for that reason the alleged error in entering the order cannot be inquired into.

2. But if the question argued at the bar had been properly presented the order would not have been disturbed. The decision as made below was one based wholly upon the construction which the Court below placed upon its rules of practice, and even if open to examination here, on the ground that it mistook the meaning of its own rules, we think that the continuance of the cause on April 14th, 1871, upon consent of parties, took away for the period of two years thereafter the right of the defendant to move its dismissal under the thirty-first rule of the Court below.

It is argued here, however, that the cause should have been dismissed, irrespective of the rule itself, and upon the ground of lack of diligence in its prosecution.

If the question of diligence in fact, and under the actual circumstances of the case as they may be ascertained to exist, is to be made, it ought to be presented to the Court below in the first instance, upon notice given, so that the plaintiff may have an opportunity to present the facts upon which he relies to establish the proper degree of diligence upon his part. No such proceeding appears to have been as yet attempted upon the part of the defendant in the Court below.

Order affirmed.