plaintiffs are non-resident. If one of them be a resident, the defendant cannot demand it, however, irresponsible he may be. Ten Broeck vs. Reynolds, 13 How., 462.

This rule does not, however, apply to a non-resident guardian ad litem, for an infant joint plaintiff. A different principle applies, as, under the statute, 2 R. S., 416, section 2, it is required that he should be a competent and responsible person. Same case. See also Cook vs. Rawden, 6 How., 233.

As to the power of the courts to require security from the next friend of a married woman, while such was the practice, and the extent to which its discretion in that respect would or would not be exercised, see Thomas vs. Thomas, 18 Barb., 149; 12 L. O., 274.

The fact that the plaintiff has given other security in the cause, as in the case of replevin, does not deprive the defendant of his right to require security under the statute now in question. Gilch vs. Barnaby, 1 Bosw., 657; 7 Abb., 19. See also, Moir vs. Brown, 9 How., 270 (272); Boucher vs. Pia, 14 Abb., 1. See, however, per contra, Wisconsin Marine and Fire Insurance Company Bank vs. Hobbs, 22 How., 494. A foreign government is liable to be so called upon. Republic of Mexico vs. Arrangois, 3 Abb., 470.

It has been held that the stay of the plaintiff's proceedings effect.s an extension, pro tanto, of the defendant's time to answer. See Thorpe vs. Baulch, 3 Abb., 13 (note). This appears, however, to have been an obiter dictum, and, till the point has been formally decided, it will te more prudent to apply for and obtain a formal order of extension in regular course.

In the event of the plaintiff's failing to file security within the time limited by the order, or of the sureties failing to justify after exception duly taken, it will doubtless be competent for the defendant to move for a dismissal of the action. The motion will be founded upon proof of the order originally granted, and of the failure of the plaintiff to comply with its terms, and must be brought on on regular notice given, at some reasonable time after the default has been made. See relief of this nature granted in Long vs. Hall, 1 C. R. (N. S.), 114. See also Graham, p. 509.

(b.) CHANGE OF VENUE INTO PROPER COUNTY.

The present is the proper stage of the action for making an application of this description, when made on the above ground. This proceeding must not be confounded with the ordinary motion to change the venue on grounds of convenience, the proper time for making which is after issue, and which will, accordingly, be treated of hereafter, at that point in the progress of the cause.

The point as to what will or will not be the "proper county," in different cases, has been already discussed, and the statutory provisions and cases, bearing upon the rights of parties in this respect, cited in the introductory chapter of book VII., sections 137 and 138.

The considerations entered upon in the present section will be confined to the mode in which the remedy so given is obtainable.

That remedy is given by section 126 of the Code, already cited in section 137, above referred to.

To entitle himself to it, the defendant must demand, in writing, that the trial be had in the proper county.

He must make that demand before the time for answering expires. And, when the demand is made, he must, thereupon, follow it up: Either by obtaining the consent of the adverse party to such change, or by applying to the court for an order.

Unless such steps be taken by him, and such change be so made accordingly, by one or the other of the foregoing methods, the case may, notwithstanding, be tried in the county originally designated by the plaintiff, though not the proper county.

Under the Code of 1849, it was not in terms prescribed that such demand, when made, should be followed up by an application for an order; but such was, nevertheless, held to be the proper practice. See Hasbrouck vs. McAdam, 4 How., 342; 3 C. R., 39; Moore vs. Gardner, 5 How., 243; 3 C. R., 224; and Mairs vs. Remsen, 3 C. R., 138; Vermont Central Railroad Company vs. The Northern Railroad Company, 6 How., 106.

The question is now placed beyond a doubt by the section itself, as amended in 1851.

The demand must, of course, be duly served upon the adverse party, in the ordinary manner. It should be in the terms of the section, i. e., "that the trial should be had" in the "proper county;" if these words be omitted, and a county simply named, it would seem that the demand would not be good. Beardsley vs. Dickerson, 4 How., 81. If one county be named in the demand, a motion to change the venue into another cannot be grounded upon it, but a fresh demand must be made. Vermont Central Railroad Company vs. The Northern Railroad Company, 6 How., 106.

Such demand, and the application consequent thereon, may be made by one of several defendants. The consent of the others should, however, be obtained, or notice of the application given to them. Mairs vs. Remsen, 3 C. R., 138.

Nor does the denial of such an application on the part of one defendant, affect the right of another, subsequently served, to repeat and enforce it. New Jersey Zinc Company vs. Blood, 8 Abb., 147.

The defendant must be careful to make his demand in due time, or his right to do so will be gone; and he may also waive that right, by acts inconsistent with its assertion.

Thus, where a defendant had served his answer before the expiration of the time allowed, and afterwards, within that time, demanded a change of venue under this section, it was held that the application was made too late. Milligan vs. Brophy, 2 C. R., 118.

Such demand may, however, be made simultaneously with the putting in of the answer. Mairs vs. Remsen, 3 C. R., 138, above cited. Although the demand must be made before the time for answering expires, it is not necessary that the consequent motion should be noticed within the same period. The defendant is on the contrary entitled to wait, and will not be chargeable with laches, until the plaintiff's time to serve an amended complaint has expired, in order to see whether the latter may not, on such amendment, obviate the objection. Conroe vs. The National Protection Insurance Company, 10 How., 403.

Where such an amendment is made after notice of motion served, the defendant's right to bring on a motion on this ground will, of course, be gone. If, however, such notice has been given on this and also on other grounds, such amendment, though it obviates one, will not affect his right to bring on that motion on the others. Toll vs. Cronwell, 12 How.. 79.

Where the plaintiffs are non-residents, and the defendants residents of the state, a change to the county of residence of the latter, or one of them, will be prima facie a matter of right. New Jersey Zinc Company vs. Blood, 8 Abb., 147.

The defendant must be careful to bring on his application in due forn. If he omit to make the necessary demand, a change on this ground cannot properly be granted on the denial of a subsequent application on that of the convenience of witnesses. Houck vs. Lasher, 17 How., 520.

The motion, when made, should be grounded on proof of service of, and non-compliance with the demand prescribed by the section. The moving affidavit should also state clearly the facts necessary to show that the county designated in the complaint is not the proper county, and likewise the date of the service of demand, to show that the time for answering had not expired when it was made. The notice should be upon the complaint, demand, and affidavit; should seek relief in the words of the section; and may properly ask for costs of the motion, which may be ordered to abide the event of the action. See Northrup vs. Van Dusen, 5 How., 134; 3 C. R., 140.

For further considerations on the subject of the change of venue, see chapter III. of book IX., where the subject is generally considered, in

reference to motions made for that purpose on general grounds, and after issue joined.

The above provisions do not, in any way, restrict the power of the court to grant a change of venue on other grounds, on a proper application for that purpose. Nor is the power of the opposite party to make such an application in due time, impaired by his having previously complied with a demand to change the venue into the proper county, under the above provision. See Moore vs. Gardner, 5 How., 243; 3 C. R., 224. Unless the question is brought up in the shape of conflicting motions (see Mason vs. Brown, 6 How., 481), the parties must first be put right, after which either has the privilege, at the proper time, of coming in and being heard, on the ground of the convenience of witnesses. See Park vs. Carnley, 7 How., 355; International Life Assurance Company vs. Sweetland, 14 Abb., 240.

The change, when made, carries with it a change of venue for all purposes, unless special provision to the contrary be made in the consent or order. See section 136, concluding clause. See also rule 3.

An application of the same nature would doubtless be entertainable in any case pending either in the New York Superior Court, the New York Common Pleas, or in the Superior Court of Buffalo, in which ju risdiction has been acquired simply by transient service, and neither of the parties is a resident, or where, in an action brought in any of those tribunals, the venue is clearly local in some other county. The application must, however, in such a case, be made to the Supreme Court, under the special powers for that purpose contained in section 33 of the Code, as to the two former, and section 15 to 18 of chapter 361, of 1857, in relation to the latter, heretofore cited in book I, section 19.

Should a similar contingency occur with respect to any other of the local tribunals, the remedy lies in an application to the Supreme Court, by way of certiorarı.

(c.) TENDER.

In cases where this precautionary measure may be considered advisable, the present will be the appropriate time for its being made. The subject, in its general bearings, will be considered in connection with the plea of such tender, when made, in the subsequent chapter on Answer.

§ 164. Offer to Compromise.

The facilities afforded by the Code in this respect are, in strictness, obtainable at any period before trial. The present being, however, the period of the action at which a resort to them will be more peculiarly

sign must accompany the act. Nor will the signature of a firm name of the defendants, as such, be available for any purpose, or authorize the clerk to enter up any judgment whatever.

Where two joint-debtors are sued, and one of them makes no defence, an offer made by the other will be available to deprive the plaintiff of his costs. La Forge vs. Chilson, 3 Sandf., 752; 1 C. R. (N. S.), 159. When the summons has been served on one partner or joint-debtor only, he may, it seems, make an offer, and such offer will be available for the entry of the usual joint-debtor judgment. Lippman vs. Joelsen, 1 C. R. (N. S.), 161, note; Olwell vs. McLaughlin, 10 L. O., 316; Sterne vs. Bentley, supra; Emory vs. Emory, 9 How., 130. See also Paton vs. Wright, 15 How., 484; Lahey vs. Kingon, 22 How., 209; 13 Abb., 192. But, where more than one of such defendants has been served, one of them, it would seem, has no longer any power to bind the others, but an offer, to be valid, must be concurred in by all who have been brought into court, unless, indeed, they be in default at the time. See La Forge vs. Chilson, 3 Sandf., 752; 1 C. R. (N. S.), 159.

Where, however, there is any fraud or collusion in the case, or where one partner makes such an offer without the knowledge or consent of the others, it will be unavailable, and a judgment taken upon it will not stand. Eversohn vs. Gehrman, 10 How., 301; 1 Abb., 167; Bridenbecker vs. Mason; Binney vs. Le Gal; Blodgett vs. Conklin, supra. As to the power of a defendant to make such an offer, under any circumstances, or for any purpose not actually fraudulent, and even at the outset of a suit expressly brought for the purpose of giving preference to one debtor over another, and that for future as well as existing indebtedness, see Hill vs. Northrop, 9 How., 525.

In Smith vs. Olssen, 4 Sandf., 711, the fact that the defendant had made an offer before answer, was considered sufficient reason for denying a motion that he satisfy the same amount, as subsequently admitted, and this doctrine appears to have been followed in Ryder vs. The Union India Rubber Company, 1 Abb., 444, note. See, however, these decisions qualified, and the principle that an offer, when refused, is a nullity as regards any subsequent proceedings whatever, maintained in Dusenberry vs. Woodward, 1 Abb., 443. See also Meyers vs. Trimble, 1 Abb., 220; 1 Abb., 399, and Merritt vs. Thompson, 10 How., 428. As to offer, instead of tender, of the amount due, being the proper course to pursue with a view to stay proceedings in foreclosure, see Thurston vs. Marsh, 5 Abb., 389.

As to the inexpediency of acceptance, by the plaintiff, of an offer to take judgment for less than fifty dollars, in view of the defendant being entitled to his costs, in such case, under section 304, see Johnson vs. Sagar, 10 How., 552.