not, of itself, have the effect of extinguishing a counter demand of the defendant. But, if such demand be subsequently set up by the answer, and extinguished upon the trial, the plaintiff will be entitled to his costs, as if he had generally prevailed, though his actual recovery did not exceed the amount tendered. Ruggles vs. Fogg, 7 How., 324; Fiddings vs. Mills, 2 Bosw., 489.

When made after, or in connection with an answer setting up a counter-claim, the counter-claim will be extinguished per se; and, if the plaintiff recover less than the sum offered, the defendant will be entitled to his costs. Schneider vs. Jacobi, 1 Duer, 694; 11 L. O., 220; Kilts vs. Seeber, 10 How., 270.

Although the defendant, on a verdict being given for less than the offer, is entitled to his costs, he cannot recover an extra allowance, under sections 308 and 309. McLees vs. Avery, 4 How., 441; 3 C. R., 104.

In such case, however, the plaintiff is entitled to recover his costs up to the time the offer was made. It is only those subsequent that are to be allowed to the defendant. Keese vs. Wyman, 8 How., 88; Burnett vs. Westfall, 15 How., 420.

In relation to an offer to take judgment, entitling the plaintiff to the performance of a specific act, and the mode in which that performance may be enforced, see Fero vs. Van Evra, 9 How., 148.

A similar proceeding is now provided for, in relation to appeals from justices' judgments, by section 371 of the Code, as last amended (1862).

(a.) COMPROMISE GENERALLY CONSIDERED.

With reference to compromise in general, the enabling provisions of chapter 257 of the laws of 1838, as amended by chapter 348 of those of 1845, with reference to compromises or compositions, effected by one out of several partners or joint-debtors, should not be lost sight of, where a defendant, desirous of compromising, stands in either of those positions. The remedy being obtainable by means of a special agreement, and not by way of proceeding in the course of a suit, its consideration here would necessarily be out of place. Assuming, however, such a compromise to be effected after a suit has been actually commenced, and before judgment, by one of several defendants, desirous of getting rid of his individual liability, a consent to dismiss the action, as against him, should be obtained from the plaintiff's solicitor, as part of the arrangement, and a judgment of dismissal, without costs, entered thereupon. If that consent be refused, the proper course will then be to plead the memorandum to be taken under the statute, or, if issue be already joined, to apply to the court for leave to file a supplemental

answer for that purpose, and then apply to the court for judgment thereon, by motion, or order to show cause, in the ordinary form.

§ 165. Proceedings Preliminary to Answer.

(a.) APPOINTMENT OF GUARDIAN, &c.

Where an infant is defendant, the first proceeding to be taken is the appointment of a guardian ad litem. Until this is done, no answer can properly be put in, or act properly done in the suit, on behalf of such infant. See previous chapter, in relation to the proceedings necessary for that purpose.

So likewise in the case of a lunatic or incapacitated person, for whom no committee has been appointed.

Before the amendment of 1857, it was likewise necessary that a married woman, if sued in respect of her separate property, or by her husband, should appear by her next friend. Since that amendment, this is no longer the case, but she may defend in the same manner as any other person.

(b.) APPLICATION FOR LEAVE TO DEFEND.

When sued jointly with her husband, in respect of some joint interest, the wife may answer separately in certain cases; i. e., 1. Where the husband's interest is adverse to hers; 2. Where he is a defendant in her right, and she disapproves of the intended defence; 3. Where she lives separate from him; or, 4. Where he is out of the jurisdiction, oran alien enemy. So also in real estate actions, if the husband absent himself, and will not defend the wife's right. 2 R. S., 340, section 4. In all these cases, however, the leave of the court to enable her to answer separately, must first be obtained. Newcombe vs. Ketteltas, 2 C. R., 152.

But, where the controversy relates to her separate estate, that leave will not be necessary. Harley vs. Ritter, 9 Abb., 400. See also Arnold vs. Ringold, 16 How., 158.

Where suit is brought against a receiver, or other party acting under the special authority of the court, an application of this nature will be advisable before assuming to defend. The same will be the case with regard to the committee of a lunatic, or incapacitated person, appearing and defending in his behalf.

The application in such cases should be by motion, grounded on peti. tion or affidavit, showing clearly the circumstances under which the action is brought, and the reasons why such leave is required. The application will be ex parte, but a copy of the order, and of the papers

And, if any extension of time to answer or demur has been granted by stipulation or order, the fact shall be stated in the affidavit.

The above rule is, it would seem, not applicable to the case of an application for time to reply, or demur to answer. In the case of an application for time to answer, it is absolutely imperative. And when, from the papers served, it appears that its provisions have not been complied with, the order may be disregarded. Ellis vs. Van Ness, 14 How., 313.

In addition to the above requisites imposed by the rule, the affidavit should show clearly upon its face the date at which the current time expires, either with reference to the original service of the complaint, or the expiration of the last extension granted, making it clearly apparent that the applicant is not in default; and the circumstances under which the indulgence is required should be clearly, though concisely shown, care being taken, by the party swearing to the affidavit, to lay bare his own case as little as possible, whilst stating enough to induce the court to act.

The application is, in the first instance, strictly ex parte. The restriction in section 401, that no order to stay proceedings for a longer time than twenty days shall be granted by a judge out of court, except upon previous notice to the adverse party, is applicable to this as to other similar cases. The applicant must be careful, therefore, not to take an ex parte order for a longer period. If he does so, he does it at the risk of the order being either disregarded, or impeached by the adverse party as irregular. If from any cause it be necessary for him to ask for a longer time, it will be the better course for him to make an application on notice, on which it will be competent for him to take an order for any period, which, upon the face of his moving papers, he may show to be necessary.

In Wilcock vs. Curtis, 1 C. R., 96, it was held that the above restriction did not extend to an order of this description, inasmuch as it did not effect a general stay; and this case does not appear to have been directly overruled. The doctrine is one, however, not to be

depended upon.

Nor is the practice sometimes pursued of obtaining a series of ex parte orders, each extending the period for twenty days or less, but, collectively, amounting to a longer period.

The only safe course of proceeding will be to answer within the original period, if possible; if not, to obtain an ex parte extension for twenty days, and, if that period should not be sufficient, then to apply to the court, on notice, for such further period as may be actually requisite. See, heretofore, book IV., section 74, under the head of

Ex Parte Motions, and cases there cited, especially those of Sakes vs. Woodin, 8 How., 349; Anonymous, 5 Sandf., 656; and Mills vs. Thursby (No. 2), 11 How., 114.

When the order is made ex parte, no special form is necessary, and the usual form is to indorse on the affidavit, "Let the defendants have days additional time to answer in the above entitled action," or some other memorandum to the same effect, the date being prefixed or added. An order in this form extends the time to demur. See Brodhead vs. Broadhead, 4 How., 308; 3 C. R., 8. The change of wording necessary, when the application is for time to reply, is obvious, and it would be more correct, though unnecessary, to insert the word demur," as well as answer or reply in either case. A provision that the issue be of the date when the answer is first due, may also be properly inserted, and it is a frequent practice for the judge to add one to the order, if omitted, before affixing his signature.

The affidavit, containing the requisites above prescribed, with an order or memorandum subjoined, is presented to the judge at chambers, or out of court, who, if he grant the application, affixes his signature. When obtained, a copy of such order, and also of the affidavit on which it was granted (which last is indispensable), must be served on the opposite party, and then the proceeding is complete. Neither order nor affidavit need be filed, or entered with the clerk of the court. See Savage vs. Relyea, 3 How., 276; 1 C. R., 42.

Though such an order be granted prematurely, it does not commence to run till the then current time to plead shall have expired, unless, of course, the contrary be expressed, or some specific date for its commencement be named upon its face. An order granted on the 1st, has been, accordingly, held available to extend the time until the 28th, the then current time to answer not expiring till the 8th of the samo month. See Schenck vs. McKie, 4 How., 246; 3 C. R., 24.

It is competent for the defendant to make service of such an order by mail, as in other cases, and the service will be good if the copy be regularly mailed on the day at which the existing time expires, though it be not actually received by the plaintiff till afterwards. If he takes judgment in the interim, it will be liable to be set aside, though not, per se, irregular. See Lawler vs. Saratoga County Mutual Fire Insurance Company, 2 C. R., 114; Schuhardt vs. Roth, 10 Abb., 203.

(c.) NEGLECT TO EXTEND IN DUE TIME.

It may be looked upon as settled that, if the defendant allow his time to plead to go by without obtaining an extension, he cannot afterwards serve his pleading, in ordinary form, or without leave of the court, specially obtained on notice to the plaintiff; and this, although

for extension should in no case be omitted under these circumstances, where the party is not ready with his pleading at the expiration of the original period.

Service by mail, where otherwise admissible, is, however, so far allowable that if the party regularly mails the copy of his pleading on the last of the twenty days, or on the last day of any extension granted, the service will be good, though it be not received by his adversary until a subsequent day; and, if the latter enters up judgment before the expiration of a reasonable period to be allowed for the receipt of the answer in due course of post, he will do so at his peril. See Schenck vs. McKie, 4 How., 246; 3 C. R., 24; Noble vs. Trotter, 4 How., 322; 3 C. R., 35, and Brown vs. Briggs, 1 How., 152; Radcliff vs. Van Benthuysen, 3 How., 67; Jacobs vs. Hooker, 1 Barb., 71, there cited; Gibson vs. Murdock, 1 C. R., 103; Lawler vs. Saratoga Mutual Fire Insurance Company, 2 C. R., 114.

Where service by publication has been made, the time to answer commences to run from the completion of the time of publication prescribed by the order, and the defendant will be allowed twenty days thereafter; nor will personal service avail to alter this rule or limit the time allowed, if such service be made out of the state. See heretofore, book III., section 56, and Tomlinson vs. Van Vechten, 6 How., 199; 1 C. R. (N. S.), 317; Abrahams vs. Mitchell, 8 Abb., 123; Dykers vs. Woodward, 7 How., 313; Mackay vs. Laidlaw, 13 How., 129, and Back TE. Crussell, 2 Abb., 386, there cited.

Where the summons was served separately, and a copy of the complaint afterwards delivered to the defendant, but not on his demand, and merely as part of the proceedings on an arrest, it was held that the time to answer ran from the service of the summons, not of the complaint, and a judgment entered on the expiration of the former period, was held to be regular. Van Pelt vs. Boyer, 7 How., 325.

(a.) EXTENSION OF TIME BY CONSENT.

If the party, or his attorney, from any reason, finds himself unable to prepare his pleading within the time allowed by the above sections, the usual course is to apply to the adverse attorney for a consent enlarging the time, unless, for other reasons, the request be unadvisable. This consent must, of course, be in writing, and signed by such attorney, or else, under rule 13 (37) of the Supreme Court, it will not be binding; but, within these conditions, no particular form is necessary. The party obtaining it will, of course, take care that the period allowed is distinctly expressed, and that the cause in which the consent is given, is distinctly referred to.

If, at the time of applying for such consent, the defendant has either