in analogy with the time given to answer or reply; and it will be seen that this last period has been adopted by the legisla ture, and is now the rule for the future.

In case the plaintiff complies with the demand, and serves the copy, the defendant's time to answer runs from the date of that service, without regard to the original service of the summons. It is clearly, therefore, the plaintiff's interest to do so, as speedily as possible. An attorney representing several defendants, is entitled to only one copy.-V. sec. 130. The service of this copy within the time demanded, is absolutely obligatory, the term must" being employed, instead of "shall," the term used in the Code of 1849. À fortiori, therefore, will the defendant be entitled to move to dismiss the complaint, or for other relief of that nature, in case the plaintiff omit to do so within the time prescribed. This rule had already been laid down, under the previous measure; though the actual time to be allowed being then unfixed, the court was always disposed to allow the plaintiff a last opportunity to comply with the requisition, under proper terms. In Littlefield v. Murin, above cited, it was distinctly held that the defendant was entitled to make this motion, both under the old practice, as saved by Rule 92, and also specially under sec. 274 of the Code, which last provision authorizes the court to dismiss the complaint with costs, in case of unreasonable neglect to proceed, on the part of the plaintiff. It was also considered that sec. 416, under which the filing of pleadings which have been served may be compelled by the adverse party, was inapplicable to the case now under consideration, in which the pleading has never been served at all. In Walrath v. Killer, 2 C. R. 129, the same doctrine was enounced, but it was further held that a motion of this description must be made on the first motion day after the expiration of the time the plaintiff had for that purpose; and, on the ground that the defendant had waited forty days, in the belief that the plaintiff would be allowed that time, (the case being one where service by mail was admissible,) the motion was denied. There can be no question but that this doctrine would be sound, under the present amendment, where a positive time is fixed; but the case seemed somewhat hard, under the former measure, by which that time was left uncertain. In Ecles v. Debeand, 2 C. R. 144, a motion to dismiss was also granted, on the ground of unreasonable delay, but conditionally, in case the plaintiff should fail in compli ance with strict terms imposed upon him; and it was held that

the non-payment of his counsel-fee, was not a sufficient excuse for his past delay. In Colvin v. Bragden, 5 How. 124, 3 C. R. 188, similar relief was granted, but upon terms; and in Munson v. Willard, 5 How. 263, 3 C. R. 250, the principle was treated as admitted, though the motion was there refused, as being made prematurely.

In all the above cases, a locus penitentice was, as will be seen, given to the plaintiff; though the defendant's right to move, and to the costs of the motion when properly made, and also the propriety of imposing stringent terms upon the plaintiff, was admitted in all. Under the recent amendment it is, as before observed, probable that a stricter practice will be adopted, and especial care should be taken by the plaintiff to complete and serve his complaint within the twenty days, in all cases. If he cannot do so, he should, on no account, omit to apply to the court for an order extending the time allowed.

Of course, in reference to the different periods of time above referred to, and elsewhere throughout the work, the nature and incidents of service by mail, where admissible, and the effect of that service in doubling the ordinary periods allowed, must not be lost sight of.

The form of a notice of motion for the above purpose, will be found in the Appendix of Forms. It should be supported by an affidavit of service of the demand, and of the non-receipt of the copy demanded, within the twenty days now allowed.

On the copy complaint being served, it should, at once, be examined with care, to see whether any inherent defects exist in its structure, which may be made the subject of a motion under sec. 160. The nature of the different defects on the score of irrelevancy or redundancy, impeachable by this mode. of proceeding, and the course to be adopted for that purpose, have been already fully detailed in the introductory chapter, on the correction of pleadings. The same remark applies to the subject of motions to compel the plaintiff to render his pleading more definite and certain, under the powers of the same section. Of a like nature are the recent amendments in section 122, in relation to the powers now given of interpleader and substitution of one party for another, also fully considered in the same chapter.

Although the complaint be perfect in its form, it may, in certain cases, be deficient in the necessary information for the

defendant's guidance, in cases where an account is alleged, and the plaintiff avails himself of the permission conferred by sec. 158, and omits to state the items of it. In this case, the defendant should forthwith demand a copy of such account, under the powers of that section. For the form of demand, which must be in writing, and served in due form, see Appendix. If the complaint be verified, the copy account, or bill of particulars, must be verified also; (see same section :) and, if this be omitted by the plaintiff, the defendant should give immediate notice of the defect to the plaintiff's attorney, and return the defective paper. See Laimbeer v. Allen, and other cases previously cited, with reference to the return of defective papers, in the introductory chapter, as to the formal requisites of pleading. If the plaintiff omit, in such case, to serve a properly verified copy, or if the copy regularly served, be deficient in the necessary information, the defendant should apply, in the usual manner, for an order, requiring the plaintiff to render a further and more definite account. (See same section.) The case of Wiggins v. Gaus, 3 Sandf. S. C. R. 738; 1 C. R. (N. S.) 117, though not directly in point, will afford an indication as to what the court will consider as clearly an insufficient compliance with such a demand. If the plaintiff omit to comply with the demand at all, and the exclusion of evidence of the account be not sufficient for the defendant's purpose, he should then apply to the court for a special order upon the subject, under the last clause of the section above referred to; which order would, doubtless, be made, as of course, on proof of the demand, and of the plaintiff's non-compliance, and it would be wise to make a general stay of proceedings a part of the order so asked for.

The Code of 1849 was defective, in confining the defendant's right, in such respects, to cases in which an account was alleged in the complaint. The recent amendment cures this defect, and the defendant may now, in all cases, apply to the court, that the plaintiff may be ordered to furnish a bill of particulars. Wherever, therefore, the statement of the plaintiff's case is too general, and the details require to be given, in order to enable the defendant to meet that case in a proper manner, he should apply forthwith for an order of this description, which may be obtained ex parte, and without any further evidence than that afforded by the pleading itself; and, if the

plaintiff meet this requisition evasively, a second order, for a further and more particular bill, should be obtained. The plaintiff possesses similar rights as against the defendant, in cases where a set-off is claimed by the latter.

In case of non-compliance with these provisions, and especially with those in relation to the verification of the bill so delivered, the plaintiff will be precluded from giving evidence of the account omitted to be furnished. One point, in relation to this remedy, seems to have been left unprovided for in the rules of the court, and that is, with reference to delay, on the part of the plaintiff, in furnishing the bill so required. By analogy with the provisions of Rule 11, in relation to the discovery of books and papers, an order for furnishing a bill of particulars ought to operate as a stay of proceedings, and as an extension of the time to answer, until such order shall have been complied with or vacated. The reasons for the one appear to be equally forcible with respect to the other, but no express provision seems to have been made upon the subject. In the event, therefore, of any delay or evasiveness, on the part of the plaintiff, in complying with the demand, the defendant should apply for an order staying all proceedings, and extending the time to answer until after due compliance on the part of the plaintiff. This order would, doubtless, be considered as of course, on the facts being made apparent.

The next point to be considered, is, as to whether the inspection of any books, papers or documents, in the possession or under the control of the plaintiff, is necessary or advisable, on the part of the defendant, for the purpose of enabling him to prepare his answer in the action. If so, he possesses, under sec. 388 of the Code, the power of enforcing that inspection, and obtaining a copy, or permission to take a copy of the documents inspected, by means of an order of the court, which order, as before remarked, stays all proceedings, and extends the time to answer until it is either complied with or vacated. The measures for this purpose, and the cases on the subject, will be found fully treated of hereafter, in connection with the proceedings between issue and trial.

Of a similar nature are the powers conferred by the chapter of the Code in reference to the examination of parties, c. VI. of Title XII. of Part II., and particularly by sec. 391, in that chapter. In Chichester v. Livingston, 3 Sandf. S. C. R. 718; 1

C. R. (N. S.) 108, doubts were entertained as to whether this proceeding could be taken before issue joined, unless upon leave specially obtained from the court. This opinion is, however, expressed very doubtfully, and with an express reservation that cases might arise, where the ends of justice required such examination, before answer or reply; and Miller v. Mather, 2 C. R. 101, is direct authority to the contrary. It was there held that "such examination being provided by the Code as a substitute for the former bill of discovery, is governed by the rules applicable to such bills; and a discovery, by bill of discovery, might be had at any time during the progress of the suit." There seems no question but that this latter view is the correct one. Under sec. 391, the examination may be had "at any time before the trial, at the option of the party claiming it;" and all that is there prescribed, is a previous notice to the party to be examined, and any other adverse party, of at least five days, unless by special order of the court.

There is nothing in this section, or in any other part of the chapter above referred to, to qualify the above provision; and, therefore, it appears to be clear, that in cases where an examination of the plaintiff is absolutely essential for the purposes of the defence, that examination may be had in this manner, before answer put in, and for the purposes of that answer. Of course, this proceeding will not be taken without due deliberation, because the chapter in question appears to contain no provision enabling the defendant to repeat such examination, when once had. At the actual trial, however, the adverse party may, it would seem, be called as a witness, in all cases; though, if so called, his previous examination cannot then be used. The proceedings in relation to the above measure, on the part of the defendant, will also be found fully considered, and the cases cited in detail, in connection with the proceedings between issue and trial.

The above precautionary measures have reference to the eliciting of information from the adverse party, with a view to the due preparation of the defensive pleading. The following relate to precautions on the part of the defendant himself.

In cases where a tender was admissible under the old practice, that tender may still be made. The law on this subject is, however, in no manner affected by the Code; and, accordingly, the plan adopted at the outset of the work, forbids any length