If accepted by the plaintiff, the course to be pursued by him, on the entry of judgment, is clearly pointed out by the section. He must, within ten days after its receipt, give notice of his acceptance in writing, to be served in the usual manner. Such service must be proved by affidavit. He must then file in the clerk's office the summons, complaint, offer, copy notice of acceptance, and affidavit of its service; and the clerk must thereupon enter judgment accordingly. Where the offer is made at an advanced stage of the suit, the safer course may be to give notice of taxation of the plaintiff's costs in the usual manner. If made at the outset, the omission of that notice may be risked, as such costs will be trifling, and there is no practical risk of a motion for readjustment, the judgment being, in effect, a judgment for want of an answer.

Where the offer is made with reference to the answer of the defendant. the answer must be filed with the other papers, so as to form part of the record. Burnett vs. Westfall, 15 How., 420. The section expressly providing that judgment is to be entered by the clerk, no direction of the court, or of a judge is required. Hill vs. Northrop, 9 How., 525 The course to be pursued on the acceptance of an offer to liquidate damages under section 386, is clearly pointed out. The plaintiff must signify his acceptance in writing, with or before the notice of trial. If he do so, he is entitled, if successful, to take judgment for that amount as admitted damages. If he omits to accept, he does so at the risk of being fixed with costs of that branch of the case, if he recover a less favorable verdict.

When made, an offer precludes the defendant from taking any steps in the cause, until the ten days allowed to the plaintiff have expired, or his written acceptance or refusal of it be received. The election to be made by the latter must be made in writing; evidence of one made by parol, will not avail the defendant, or render any proceedings regular, which he may take within the period in question. Walker vs. Johnson, 8 How., 240; Pomeroy vs. Hulin, 7 How., 161.

Nor can the defendant, by taking this course, deprive the plaintiff of his right to proceed. He must make the offer at such a time that the plaintiff may also have the full benefit of his election, and if it is served too late, so that the cause can be reached and tried within the ten days, the rights of the parties are in all respects as if no offer had been made. Pomeroy vs. Hulin, supra.

An offer, when refused, is in the nature of a pleading, and, on the trial, a copy of it should be given to the judge or referee with the other usual papers, to enable him to act intelligently as to the award of costs. Post vs. The New York Central Railroad Company, 12 How., 552.

When made before answer, and accepted by the plaintiff, an offer will

appropriate, it may be the more convenient course at once to consider the question, not merely in its partial, but in its general aspect, so far as regards the proceeding itself, and the benefit derived from it, when taken.

The statutory provisions on the subject constitute chapter IV., title XII., part II., of the Code. They run as follows:

385. (338.) The defendant may, at any time before the trial or verdict, serve upon the plaintiff an offer in writing to allow judgment to be taken against him for the sum or property, or to the effect therein specified, with costs. If the plaintiff accept the offer, and give notice thereof in writing, within ten days, he may file the summons, complaint, and offer, with an affidavit of notice of acceptance; and the clerk must thereupon enter judg ment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence; and, if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs, but must pay the defendant's costs from the time of the offer.

Passed in its present form on the amendment of 1851. Prior to that year this remedy was confined to actions arising on contract, and the section itself was less explicit in its terms.

386. (339.) In an action arising on contract, the defendant may, with his answer, serve upon the plaintiff an offer in writing, that if he fail in his defence, the damages be assessed at a specified sum; and, if the plaintiff signify his acceptance thereof in writing, with or before the notice of trial, and on the trial have a verdict, the damages shall be assessed accordingly.

§ 387. (340.) If the plaintiff do not accept the offer, he shall prove his damages, as if it had not been made, and shall not be permitted to give it in evidence. And, if the damages assessed in his favor shall not exceed the sum mentioned in the offer, the defendant shall recover his expenses incurred in consequence of any necessary preparation or defence in respect to the question of damages. Such expense shall be ascertained at the trial.

It is obvious that, wherever admissible, i. e., in all cases where the defendant cannot dispute the correctness of a part of the plaintiff's demand, but contests it as to the residue, or where he is disposed to make a moderate sacrifice for the sake of avoiding a prolonged litigation, this course will be highly expedient, both with reference to its bearing on the eventual costs of the suit, and also as regards the possibility of its bringing about a compromise on some other terms, even if those actually tendered by the offer be not accepted.

Under the original Code this remedy was, as above stated, confined to actions arising on contract, but, by the amendment of 1851, it is extended to all cases indiscriminately. In actions sounding in tort, it may often be expedient, where the plaintiff has a bonâ fide cause of action, and the defendant is ready to pay a moderate sum, but not the amount VOL. II.-3

demanded, and there is a fair probability that a jury might be found to concur in his estimate of the actual compensation due.

In making the offer, and with regard to its future operation, if refused, especial care should be taken to insert a sufficient amount; even some slight excess may, in many cases, be advisable, especially where there is a probability of its not being accepted. See Kilts vs. Seeber, 10 How., 270 (274).

No particular form is prescribed, but it is essential that it should be in full and exact compliance with the words of the section under which it is made, which wording should, in all cases, be carefully followed. It must, however, be so distinctly and openly made, that there can be no doubt of the fact. Post vs. New York Central Railroad Company, 12 How., 552.

It is not indispensable that an actual sum should be named, provided the effect intended be clearly stated, so that the amount may be ascertained by the clerk, by means of a mere computation. It may also be made with reference to the answer of the defendant, where served before or with it. Burnett vs. Westfall, 15 How., 420.

Where served in connection with the answer, a subsequent amendment of the complaint, not materially changing the nature of the controversy, does not annul or deprive the defendant of the benefit of it, if refused. Kilts vs. Seeber, 10 How., 270.

It must expressly state that judgment may be taken with costs. Ranney vs. Russell, 3 Duer, 689. Megrath vs. Van Wyck, 3 Sandf., 750; 1 C. R. (N. S.), 157, holding the contrary, was decided before the amendment of 1851, when this condition was expressly imposed.

The signature of the defendant's attorney is sufficient, as being equiv alent to the signature of the defendant himself. Sterne vs. Bentley, 1 C. R., 109; 3 How., 331.

See, in relation to the power of an attorney to bind defendants, for whom he has actually appeared, though without authority, in a case in which neither fraud nor collusion, nor insolvency on his part is shown, Bridenbecker vs. Mason, 16 How., 203; Binney vs. Le Gal, 19 Barb., 592; 1 Abb., 283; Blodgett vs. Conklin, 9 How., 442.

By Bridenbecker vs. Mason, supra, the following requisites are laid down as essential to the validity of an offer:

It must be in writing. It must be signed by or in behalf of the defendants to be bound by it, against whom judgment is to be taken, and can only be signed in one of three ways: 1. By the defendants in person, each signing his own proper name. 2. By an agent especially authorized to sign the same for them and in their name; or, 3. By an attorney of this court, whose authority to represent the parties will be presumed. If signed by a special attorney, proof of his authority to

on which it is granted, should, at the time of appearance or answer, be served upon the plaintiff.

(c.) APPLICATION ON SERVICE BY PUBLICATION.

Where this description of service is made, the defendant must, if he decide upon defending, apply to the court for leave for that purpose. Code, section 135. That application should be made upon the summons and complaint, if the same have been received, or else upon proof of the publication of the summons, and should be accompanied by the usual affidavit of merits, or by other proof that the defendant has a real defence to the action, so as to show "sufficient cause" for making it. When such cause is shown, the order would seem to be of course, as the section expressly provides that he "must be allowed to defend the action ;" and the application may therefore be made ex parte, and not by special motion, or order to show cause. Where the complaint has not been received, the order should provide for the service of a copy, as it cannot, it seems, be demanded in the ordinary manner. See Mackay vs. Laidlaw, 13 How., 129.

Where the application is made after judgment, it is no longer a matter of right, and must be made by motion in the ordinary course.

§ 166. Time to Plead.

The answer or demurrer of the defendant "must be served within twenty days after service of the copy of the complaint." Section 143. The same period is fixed by section 153, in relation to reply or demurrer to answer, when necessary or admissible, and the cases applicable to one description of pleading, are equally in point as regards the other. The subject of time to plead will, therefore, be here entered upon as a whole, and all the cases upon the subject cited, whether applicable to demurrer, answer, or reply. No time is fixed by section 155 in relation to the service of a demurrer to reply. There can be little doubt, however, but that the usual rules would be held applicable to that form of pleading, whenever adopted.

Special provision is, made in cases where the defendant has been. arrested by section 183, as amended in 1862, chapter 460, of 1862, p.. 846, section 7. At whatever time the order of arrest may be served, the defendant is now allowed twenty days after that service in which to answer the complaint. It may probably be held that, where the order of arrest is served after answer, this provision will give the defendant twenty days' time to serve a new answer as of course, but the section being recent, has not yet been made the subject of judicial

construction.

The first remark essential to be made on this head is with reference to the effect of an order for discovery of papers, &c., which order, under rule 17 (11) of the Supreme Court, operates as an entire stay of proceedings, until it is either complied with or vacated. The party obtaining such order, it is expressly provided by that rule, "shall have the like time to prepare his complaint, answer, reply, or demurrer, to which he was entitled at the making of the order."

The same is not the case, however, with regard to an order to furnish a copy account, or bill of particulars. It does not operate as an extension per se, but an order or consent must be applied for and obtained in the usual manner. Platt vs. Townsend, 5 Duer, 668; 3 Abb., 9.

Nor will a simple order for stay of proceedings, pending an application for extension, avail to validate the service of an answer after time, but during the stay, provided the subsequent extension be refused. McGown vs. Leavenworth, 2 E. D. Smith, 24; 3 C. R., 151. It has been held, however, that an order to file security for costs has a similar operation to one for discovery, and effects an extension of time pro tanto. Thorpe vs. Baulch, 3 Abb., 13, note. This is, however, an obiter dictum, and the far safer course will be to obtain a regular extension in due form.

The mode of computation of the time so allowed is the same as in ordinary cases, as fixed by section 407 of the Code. The day of service of the complaint is excluded, and the party has the whole of the twentieth day thereafter for service of his answer. On the morning of the twenty-first day, however, the plaintiff may take his judgment by default, if such service be not duly made on the day previous. See this subject of time generally considered in a previous chapter, book IV., section 71. But, if the last day be Sunday, it is excluded, and the effect will be to give the party pleading an additional day for such service.

The double time allowed by section 412, in cases where service by mail is admissible, must also be taken into account in the computation. Where the complaint is not served with the summons, but subsequently demanded, and, when so demanded, is served by mail by the plaintiff, it has been held that the defendant is entitled to double time to serve his the same as any answer, other and that the same is the case paper, in replying to an answer so served. See Dorlon vs. Lewis, 7 How., 132 (133); Washburn vs. Herrick, 4 How., 15; Cusson vs. Whalon, 5 How., 302 (305); 1 C. R. (N. S.), 27.

Where, however, the pleading to be answered or replied to is served personally, it would be most imprudent to incur this risk in the face of the positive provisions as to service within twenty days, made by sections 143 and 153. The precaution of obtaining a consent or order