If, for any reason, this course be unadvisable, or if time be refused, application may then be made for an order extending the time to plead. This proceeding is specially provided for by sec. 405, of the Code, which runs as follows:

§ 405. The time within which any proceeding in an action must be had, after its commencement, except the time within which an appeal must be taken, may be enlarged, upon an affidavit showing grounds therefor, by a judge of the court, or, if the action be in the supreme court, by a county judge. The affidavit, or a copy thereof, must be served with a copy of the order, or the order may be disregarded.

This provision is, as will be seen, general; and, in its other aspects, will be hereafter considered. Under the powers here conferred, in connection with those of sec. 401, and the other provisions before referred to, particularly in the introductory chapters relative to the jurisdiction of the supreme court, any judge of that court, or any county judge, in any part of the state, the latter, of course, within the limits of his jurisdiction, may make orders of this description, in suits falling within his cognizance, without reference to the district in which the cause is actually pending.

In section 401, a provision is inserted, that "no order to stay proceedings, for a longer time than 20 days, shall be granted by a judge out of court, except upon previous notice to the adverse party;" and, at first sight, an order extending the time to plead, might seem to come within this description, inasmuch as, in effect, it operates as a stay on the adversary's further progress in the action, until it is either run out, or the pleading put in. In Wilcock v. Curtis, however, 1 C. R. 96, it was distinctly held that this prohibition did not comprise an order extending the time to answer, inasmuch as "It does not stay all the plaintiff's proceedings, and is not what is commonly known as a stay ;" and this case appears never to have been drawn into question, and its authority to be sanctioned by general practice. The same principle has also been extended to the analogous subject of the extension of time to make a case, in Huff v. Bennett, 2 Sandf. S. C. R. 703; 2 C. R. 139. See, also, Thompson v. Blanchard, 1 C. R. 105; and the point, therefore, may probably be looked upon as settled.

This application is strictly ex parte, and must be made on | affidavit, either of the party or his attorney. The managing

clerk of the latter will also, in most cases, be cempetent to make it. To give any positive form for the affidavit would be superfluous, since in no two cases is it probable that the circumstances will be exactly alike. The following general observations seem, however, to be applicable:

1. The date at which the current time expires, either with reference to the original service of the summons, or the expiration of the last extension granted, should be stated; and, under the latter circumstances, the fact that the time has already been extended must appear, or the court will feel strongly disposed in favor of granting an application to vacate the order, unless it be clearly shown that such omission was not made with any view to concealment or misrepresentation.

2. 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 order obtained on this application is generally endorsed on the affidavit, and, in such case, runs merely in the words, or to the effect," let the defendant A. B. have days additional time to answer in this cause," the date being added. An order in this form extends the time to demur. See Broadhead v. Broadhead, 4 How. 308, 3 C. R. 8, below cited. Of course, when the order is for time to reply, this wording must be changed. The judges signature being obtained to this memorandum, a copy of it, 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 v. Relyea, 3 How. 276; 1 C. R. 42. In Schenck v. McKie, 4 How. 246, 3 C. R. 24, it was held that an order, granting additional time to answer, does not commence to run until the then current time shall have expired. The order in that case was made on the 1st, but the time to answer expired on the 8th October, and it was held that such order, nevertheless, extended the time till the 28th.

Of course the above precautions, or one of them, must be taken before the time to plead has actually expired, and, at the very latest, on the last day allowed for that purpose. If delayed until afterwards, the application can no longer be made to the

The opposite

court ex parte-v. Snyder v. White, 6 How. 321. party having then become actually entitled to take a default, that right cannot be properly taken from him, unless on an application on notice, either by way of motion or order to show cause. The latter will, probably, be found the most convenient course, an interim stay of proceedings being asked for as part of the order. The emergency is one, however, that ought never to occur, with proper vigilance.

With reference to the mode in which the twenty days allowed to plead, and any extensions, are to be computed, provision is made by sec. 407, which runs as follows:

§ 407. The time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded.

This provision, being of general application, has been already fully considered, and the cases generally applicable cited, under the head of formal proceedings. It is clearly settled that, with reference to the limitation of time in all cases, the party has the whole of the last day to perform the act required; so that, for instance, where the summons and complaint are served on the first of the month, the defendant will have the whole of the 21st in which to plead but if he omit to do so on that day, the plaintiff may take his default on the morning of the 22d. See Schenck v. McKie, 4 How. 246, 3 C. R. 24; Truax v. Clute, 7 L. O. 163 ; Judd v. Fulton, 4 How. 298, and other cases there cited. See also O'Brien v. Catlin, 1 ̊C. R. (N. S.) 273.

The possible effect of service by mail, in doubting the time to plead, in all cases where it is admissible, must not be lost sight of. See this subject fully treated heretofore.

An order which extends the time to answer, under the present practice, extends also, as of course, the time to demur; and the defendant may, if advised, plead in that form, at any time before the plaintiff is entitled to take a default as against him.-Brodhead v. Broadhead, 4 How. 308; 3 C. R. 8. Under the old practice this was otherwise, and more in accordance with the restricted system of the English courts, under which the defendant, if he does not demur at once, is precluded from doing so at all, or, at least, from demurring alone, without answer.

Positive as is, in terms, the limitation on pleading imposed

by the above provisions, the courts have throughout shown a very strong disposition to relax the strictness of this rule in practice, though, of course, only upon the existence of a bond fide defence being shown, and on conditions imposed. The following general principle runs, too, through all the cases upon the subject, i. e., that where a defendant, already in default, applies for leave to be allowed to come in and defend, his proposed answer should be drawn and sworn to, and a copy thereof served with the notice of motion or order to show cause, by which such relief is asked in order that the court may judge as to whether the case is a proper one in which to grant relief of that nature, and as to the proper terms to be imposed, as conditions on granting it. See this last principle, as held under the old practice, in McGaffigan v. Jenkins, 1 Barb. S. C. R. 31.

The earliest case on the above subject, as applicable to proceedings under the Code, is Lynde v. Verity, 3 How. 350, 1 C. R. 97, where the whole of the different principles, as above stated, are distinctly laid down. In Salutat v. Downes, 1 C. R. 120, the same indulgence was granted, after a discussion as to whether the court had, or had not, power to enlarge the time at all. By Allen v. Ackley, however, 4 How. 5, the doctrine was carried to the fullest extent, two defendants having, in that case, been let in to defend, after judgment had been taken against them by default; one of them only making what the court pronounced to be a lame excuse for not answering, and the other making no excuse at all. The court, however, imposed strict terms and conditions; in particular, that the statute of limitations should not be pleaded, and also that the judgment should stand as a security to the plaintiff.

In Grant v. McCaughin, 4 How. 216, the defendant was allowed to come in and defend, after judgment had been entered against him, in consequence of a misapprehension as to the effect of a stipulation given, extending his time to answer; and, under these circumstances, the court, though enforcing the payment of costs, and directing the judgment to stand as security, refused to impose any condition as to the nature of the defence sought to be set up, which in that case was usury.

Where, however, an unconscientious or dishonest defence is sought to be set up, after default, the court will not open that default, or relieve the party from the consequences of his own

neglect. See James G. King v. The Merchants' Exchange Company, and others, 2 Sandf. S. C. R. 693.

In Foster v. Udell, 2 C. R. 30, the New York common pleas decided that a delay on the part of the plaintiff in taking judgment, was equivalent to a consent to give the defendant further time to answer, and they set aside, as irregular, a judgment so obtained, the defendant, long after his time had expired, but before judgment was entered, having served an answer, but which the plaintiff's attorney had refused to receive. The doctrine of this case has, however, been since overruled. A decision exactly contrary to it was given by the supreme court, in the case of Dudley v. Hubbard, 2 C. R. 70; and a motion to set aside a judgment thus entered, was denied, with costs. In Mc Gown v. Leavenworth, 3 C. R. 151, the same principle is laid down; and this, being a decision of the general term of the same court by which Foster v. Udell was decided, directly overrules it. It was also held, in the same case, that an order staying the plaintiff's proceedings, does not, per se, enlarge the defendant's time to answer. It can only be so by order specially obtained for that purpose. The stay of proceedings only precludes the plaintiff from taking advantage of the omission, until that stay is vacated, or at an end. The defendant had there, on the last day, obtained an order to show cause why he should not have further time to plead, with an interim stay of proceedings as usual, which order was discharged on the return. Pending that stay, but after the time actually allowed had expired, the defendant had served his answer, which service was held to be irregular, and was set aside.

In Mandeville v. Winne, 5 How. 461, 1 C. R. (N. S.) 161, the doctrine of the above cases, and particularly as laid down in Dudley v. Hubbard, was distinctly confirmed; and the same seems to be implied in Graham v. Mc Coun, 5 How. 353; 1 C. R. (N. S.) 43. It may, therefore, 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 the latter may not at the time have taken any steps to avail himself of the default suffered. See, likewise, O'Brien v. Cutlin, 1 C. R. (N. S.) 273. Of course, however, if the plaintiff's solicitor expressly receive, or do not return the pleading thus irregularly served, within