13. An order staying the plaintiff's proceedings, will not extend the time for the defendant to answer.

14. The time for defendant to answer is fixed by statute, and can only be enlarged by consent or order.

15. An answer will be disregarded when served a few moments only before the return of an order, to show cause why defendant's time to answer should not be extended, as when the order was issued on the last day to answer and was refused, and the answer was served when the time to answer had expired.

16 The service of a pleading after the time allowed by law, although before the adverse party has acted upon the default, is not good service.

17. A defendant cannot regularly serve his answer after twenty days from the service of the summons and complaint, unless the time to answer has been extended. (This decision seems to be overruled by the two following cases.)

18. A defendant may put in an answer at any time before the plaintiff has entered up judgment.

19. Where, on the day following the last day for the defendants to answer, they filed a petition to remove the cause into the circuit court of the United States, and entered a regular appearance with the clerk. It was decided, that the petition was filed in time, the plaintiffs having taken no steps to obtain judgment.

20. (6 Q.) Where an action is commenced by service of a summons without the complaint, and a copy of the complaint is not served within twenty days after demand, it is proper for defendant to move to dismiss the complaint.

21. Where the defendant moves to dismiss the complaint and the motion is granted, the action is discontinued or dismissed.

22. The motion to dismiss the complaint for want of an answer, is founded on section 274.

23. After notice of motion to dismiss the complaint is served, and a copy of the complaint is subsequently served on the defendant, the latter is not bound to return it imme diately, or be deemed to have waived his right to make the motion.

24. Where a summons in the form prescribed by law, for a case in which a copy of the complaint is served with it, is served without the complaint, and does not state where the complaint will be filed, the omission does not render the judgment void. It is an irregularity of which advantage should be taken by motion.

25. (7 Q.) Where defendant was served with summons, and subsequently with an order of arrest and copy complaint at the same time, but was discharged from the order because attending court as a witness, and no return of the service of the order or complaint having been made, and the defendant not having appeared; a judgment by default entered by plaintiff twenty days after the service of the summons, but within twenty days from the service of the complaint, is regular.

26. Where a summons is served stating that the complaint will be filed in the clerk's office of a certain county, as required by this section; a motion for judgment in favor of the defendant, for not serving a copy of the complaint, must be made in that district or a county adjoining the one in which it is stated that the complaint will be filed in another district.

27. (8 Q.) A notice of appearance in which is included a demand, that 'all papers" in the action be served on the defendant's attorney at a specified place, is a sufficient demand of service of a copy of the complaint.

28. The statute does not require the demand of a copy of the complaint to be made by any particular form of expression.

29. If the demand of a copy of the complaint be made without reference to the language employed, the defendant secures all the rights consequent thereupon.

30. When the defendant requires all papers to be served upon him, it is demanding that all papers should be so served.

31. A complaint is a paper in a cause which is necessary to the plaintiff's success, and

one of which the defendant should have a copy, if he either demands or requires it. This is both within the spirit and letter of the statute.

32. Judgment by default entered by plaintiff after having received from defendant's attorney a notice of appearance and a demand, as follows: "and I require that all papers be served on me at my office, No. 11 Wall street, in the city of New York," set aside as irregular-that being a sufficient demand.

33. (9 Q.) Where a party is served with a summons without any copy of the complaint, and he omits to demand a copy of the complaint wthin ten days afterwards, the plaintiff's attorney is justified in refusing him a copy when demanded after that time.

34. When a defendant, after having been refused a copy of the complaint (not having demanded it in ten days after service of summons), moves for an order to have a copy served upon him, he will be compelled to pay costs of the motion.

35. Where a summons is served without any copy of the complaint, the plaintiff is not bound to serve a copy of the complaint, unless the defendant demand the same within ten days after the service of the summons.

36. The court may in its discretion, order the plaintiff to serve a copy of the complaint where the defendant has omitted to demand the same within ten days after the service of the summons.

37. If a defendant has been served by publication of the summons, and acopy of the summons and complaint has been mailed to him, he is not entitled as of conrse, to demand a copy complaint, and have twenty days after service to answer the same.

38. The only case where a defendant is authorized to demand copy complaint, and have twenty days after service to answer it, is where there has been personal service of the summons, but no service of the complaint.

39. The defendant may, on application to a judge, obtain time to answer, and if to the court, also an order to have a copy complaint served on him.

40. (10 Q.) judgment entered by default cannot be impeached because the summons served stated that "a copy" of the complaint would be filed, instead of stating that "the complaint" would be filed.

41. Where a complaint is filed, and no copy is served with the summons, and the summons states that a copy of the complaint "is annexed," instead of stating that the complaint "is filed," the summons is irregular, and may be set aside on motion.

42. A summons stating that a copy of the complaint is annexed, when there is none annexed, but the complaint is filed, is not a nullity, and if the defect can be remedied without doing injustice, and if no injury has been occasioned by the omission, it is the duty of the court to disregard the irregularity or allow an amendment.

43. A summons served, unaccompanied by a complaint, and not stating where the complaint is or will be filed, is irregular.

§ 131. Defendant unreasonably defending, when to pay costs. In the case of a defendant against whom no personal claim is made, the plaintiff may deliver to such defendant with the summons a notice subscribed by the plaintiff or his attorney, setting forth the general object of the action, a brief description of the property affected by it, if it affects specific, real or personal property, and that no personal claim is made against such defendant, in which case no copy of the complaint need

be served on such defendant, unless within the time for answering, he shall, in writing, demand the same. If a defendant, on whom such notice is served, unreasonably defend the action, he shall pay costs to the plaintiff.

1. Question. Has this section been amended since its passage in 1848? Answer. It has, in 1851, which amendment reads as above.

2. Q. How did this section read in 1848?

A. As follows:

$110. [1848.] If a defendant, on whom such notice is served, unreasonably defend the action, he shall pay costs to the plaintiff.

Questions.

3. Q. What fee is allowable for the service of the complaint, notice of lis pendens, &c., under this section?

4. Q. When has the court the power to award costs for unreasonably defending?

3. Q. What fee is allowable for the service of the complaint, notice of lis pendens, &c., under this section?

A. In Whipple agt. Williams, 4 How., 28, Special Term, June, 1849, ALLEN, J., it was decided, that the fee of serving the complaint is not taxable, unless it is served by the sheriff, and then it is taxable as sheriffs fees.

In Gallagher agt. Egan, 2 Sandf., 742, Special Term, November, 1850, SANDFORD, J., it was decided, that where a sheriff serves with the summons, a notice of the objects of a suit for foreclosure, the plaintiff may tax for such services, as a necessary disbursement, the sum of thirty-seven and one-half cents, in addition to the sheriff's fee, for serving the summons. No charge for certificate of service is allowed. The certificate of service of the notice of the object of the action is usually included in the certificate of the service of the summons. The Judge said: A question was argued, in reference to the sheriff's fees charged in the plaintiff's costs. The views of the sheriff were presented by one of the counsel, and we have considered the matter. The sheriff' charged in respect of each defendant, the following fees, viz: Serving the summons, fifty cents; serving notice of the objects of the suit (which was attached to the summons), fifty cents; returning the summons, thirteen cents; mileage, six and one-fourth cents; and, certificate of service of the notice, thirteen cents. The parties object to the certificate and return, as a double charge for the same service; and to the charge for serving the notice, as being a part of the duty included in serving the summons, and if not, then that no fee is provided for it by law There is no fee allowed by law for the sheriff's certificate of service, by that designation. This certificate is in fact his return, and the statute gives him twelve and a half cents for returning a writ. The returning a writ, embraces as well the sheriff's statement of his acts under it, as the delivery of the writ to the clerk or attorney. The return and certificate are therefore to be charged as one service, at twelve and a half cents. The notice of the objects of the suit, in our view, is not a part of the process by which the suit is commenced. The plaintiff may serve such a notice, or a copy of the complaint, with the summons. He is not bound to serve either. The sheriff, therefore, does not serve the notice as a part of his official duty in serving process, and the fee for serving the summons does not cover the service of the notice. The law provides no spe cific fee for this service, whether made by the sheriff or by an unofficial person. We learn that in practice, these notices are now usually served by the sheritt, for the reason that every other person serving them, must make an affidavit that he knew the party served to be the person mentioned and described in the summons as the defendant therein. In foreclosure cases, it is necessary to serve such notices, under section 130 of the Code; and the expense necessarily incurred in serving them, appears to be a reason

able disbursement. which ought to be allowed to the plaintiff. Whether the service be made by the sheriff, or by any other person, is unimportant. When made by the former, the compensation for it is not allowed as sheriff's fees. It is given for an unofficial act, which could be done by any other person equally as well. The amount of this compensation, we think, in analogy to the tee formerly allowed by statute for the same service in the late court of chancery, should be thirty-seven and a half cents; and that sum will be taxed in future in this court, when shown to be a necessary aud reasonable disbursement. No charge for the certificate of service will be allowed. It ought to be, and usually is, included in the certificate of the service of the summons; but if separately made it will be paid for in the allowance for serving the notice.

In Benedict agt. Warriner and others, 14 Howe.. 568, Special Term, September, 1857, JAMES, J., it was decided, that the service of a notice of the object of suit, with a summons in a foreclosure case, is provided for by this section of the Code, and where served by the sheriff his certificate of service is made proof of the fact (§ 138). But the statute gives no fee to the sheriff for such service; nor is there anything in the sheriffs' fee bill, for which it is a substitute, or to which it bears any analogy. As to that service, the sheriff stands precisely as any other person. When, therefore, such service is actually rendered by the sheriff, or by any person, other than the party or his attorney, there is no objection in allowing to the prevailing party a reas nable sum for such service, (no copy of notice can be allowed), as disbursements, if separately stated and duly verified. For such service, one-half the sum allowed for serving the summons, is deemed sufficient, that is twenty-five cents for each defendant served. Where such notice is served by the sheriff, the certificate of service should be embodied in the return to the summons; but whether it be or not, no fee is provided for it, nor can any be allowed. Unlike the cer tificate to the summons, it is not a return to process. The Judge said: The only law regulating the fees of sherifl's in civil actions, is to be found in the Revised Statutes (2 R. S., 645, § 38.) Many of the services for which fees are there provided, and most of the process therein named, have become obsolete since the adoption of the Code of Procedure; and it is to be hoped that the legislature will, at an early day, so amend the sheriffs' fee bill, as to have it conform to the present system of practice. But while the pres ent laws continue, sheriffs will be allowed for services now, the same rates given by the Revised Statutes for services of similar character, previous to the adoption of the Code. The fees given by the Revised Statutes, so far as applicable to the present motion, are as follows: ·For serving a capias ad respondendum, writ of replevin, summons, or any other process, by which a suit shall be commenced in a court of law, citation, scire facias or declaration, when there shall have been no process previous thereto, fifty cents; for traveling in making such service, six cents per mile, for going only, to be computed in all cases, from the court-house of the county, and returning a writ, twelve and a half cents." The summons is now the substituted process for the commencement of civil actions, (Code, § 127). It may be served by the sheriff, or by any other person, except a party; but when served by the sheriff, his certificate is made proof of such service (Code, §§ 133, 138). For serving a summons, the sheriff is entitled to fifty cents for each defendant served. He is also entitled to six cents per mile, for going only, to be computed from the court-house. But this fee only applies to the process itself, and not to the number of defendants named, or who may be cerved. But one travel fee can be charged on the same process. For the certificate required by Code (§ 138), no compensation is provided by that name, but as it is an act which the officer is bound to perform, and invested with all the force and attributes of a former return to a writ, it must be regarded as the sub stitute for a return, and the officer entitled to the fees allowed for such service. This was an action for the foreclosure of a mortgage on which notice of the object of the action was served by the sheriff, with the summons. The service of such a notice with the summons is provided for by the Code (§ 131), and when served by the sheriff, his certificate of service is made proof of the fact (§ 138). But the statute gives no fee to the sheriff for such service, nor is there anything in the sheriffs' fee bill, for which it is a substitute, or to which it bears any analogy. It cannot be regarded as any part of the process, as it was entirely optional with the plaintiff whether he would give the notice or not; and the summons was perfect without it. As to that service, therefore, the sheriff stands precisely as any other person. In Gallagher agt. Egan, (2 Sundf., 742, 745), it was held that for such services, whether performed by the sheriff or any other person, the fee of thirty-seven and a half cents, might be allowed in analogy to the fee formerly allowed by statute for the same service, in the late court of chancery. When such service is actually rendered by the sheriff, or by any person, other than the party or his attorney, I can see no objection in allowing to the prevailing party a reasonable sum for such service as disbursements, if separately stated and duly verified. The fee spoken of in Gallagher agt. Egan, was for copy of notice and service. Under no color or pretence can there be an allowance for copy of the notice. The service is the only matter which can be allowed, and for that, one-half the sum allowed for serving the summons I deem sufficient. It is performed at the same time with the service of the summons, and affords ample compensation for the labor. When such notice is served by the sherif, the certificate of service should be embodied in the return to the summons, but

whether it be, or be not, no fee is provided for it, nor can any be aliowed. Unlike the certificate to the summons, it is not a return to process. I shall, therefore, direct the clerk to re-adjust the costs in this case, and to allow to the plaintiff as disbursements for each defendant served by the sheriff with the summons, fifty cents; for each defendant served by the sheriff with the notice of object of suit, twenty-five cents; for a return to the summons issued to each county, twelve and a half cents; and for every mile traveled in going, to be computed from the court-house, six cents, but only one travel fee to be allowed upon each writ.

4. Q. When has the court the power to award costs for unreasonably defending?

4. In O'Hara agt. Brophy, 24 How., 379, General Term, February, 1863, SCRUGHAM, J., it wat decided, that it is not necessary to the commencement of any action, that a copy of the complaint be served upon the defendant; he is brought into court by the summons alone Where the notice prescribed by this section of the Code, has not been served, it does not deprive the court of the power in equity cases to award costs for unreasonably defending, against defendants upon whom a copy of the complaint has been served. It is not necessary to serve the notice in case a copy of the complaint is served with the summons, as the complaint furnishes the information necessary to the defendant, more fully than the notice, which is nothing more than an abstract of it; and it would certainly be as improper for a defendant in that case unreasonably to defend the action as it would be if, instead of a copy of the complaint, a notice of the object of the action, had been served upon him, and the court should in its discretion, award the costs against him in the one case as freely as in the other. The Judge said: The provision that a defendant upon whom the notice prescribed by section 131, is served, shall pay costs if he unreasonably defend the action, does not deprive the court of the power in equity cases, to award costs for unreasonably defending against defendants upon whom a copy of the complaint, but no such notice, has been served. It is not necessary to the commencement of any action that a copy of the complaint be served upon the defendant; he is brought into court by the summons alone. In equity cases this gives him no information of the cause of action or of the nature of the relief sought against him; a copy of the complaint would afford it, but as the complaint may be, and in such cases generally is, voluminous, the notice is provided as a short substitute calculated to convey to the defendant all the information necessary to acquaint him with the nature and object of the action, and of the extent to which his rights will be affected by it, and upon which a defendant, against whom no personal claim is made, may safely determine whether it will be necessary for him to take any proceedings in the action. The complaint furnishes this information more fully than the notice, which is nothing more than an abstract of it, and it is not necessary to serve the notice in case a copy of the complaint is served with the summons; for it would certainly be as improper for a defendant in that case unreasonably to defend the action as it would be if, instead of a copy of the complaint, a notice of the object of the action had been served upon him, and the court, exercising its discretion in the awarding of costs, would doubtless award them against him in the one case as freely as in the other.

What is the result of the decisions under this section?

1. (3 Q.) The fee for serving the complaint is not taxable, unless it is served by the sheriff.

2. When the complaint is served by the sheriff, the fees therefor are taxable as sheriff's fees.

3. Where the sheriff serves a notice of the object of suit for foreclosure, with the summons, the plaintiff may tax the sum of thirty-seven and a half cents, in addition to the sheriff's fee for serving the summons.

4. No charge for certificate of service of notice of object of suit will be allowed.

5. The certificate of service of notice of object of suit, is usually included in the certif icate of service of summons.

6. The service of a notice of the object of suit, with the summons in a foreclosure case, is provided for by this section of the Code, and when served by the sheriff, his certificate of service is made proof of the fact (§ 138).

7. The statute gives to the sheriff no fee for the service of notice of object of suit, nor is there anything in the sheriffs' fee bill, for which it is a substitute, or to which it bears any analogy.