or not being previously filed. The filing may, however, be compelled at any time by the defendant, under sec. 416.-See next chapter.

The mention of this subject naturally introduces us to the concluding topic of this chapter, i. e., the collateral proceedings advisable to be taken by the plaintiff, in certain cases, in connection with, and at the time of the preparation and service of his first pleading. These proceedings are two-fold; the first of them being the notice of the object, and the second, the notice of the pendency of the action.

The following is the section of the Code in reference to the former:

§131. In the case of a defendant against whom no personal claim is made, the plaintiff may deliver to such defendant with the summons a notice subscribed by the plaintiff or his attorney, setting forth the general object of the action, a brief description of the property affected by it, if it affects specific real or personal property, and that no personal claim is made against such defendant; in which case no copy of the complaint need be served on such defendant, unless, within the time for answering he shall, in writing, demand the same. If a defendant, on whom such notice is served, unreasonably defend the action, he shall pay costs to the plaintiff.

Under the Code of 1849, this proceeding was confined exclusively to actions for partition and foreclosure, and was not admissible in any others. This defect is now removed, and, therefore, under any circumstances whatever, a notice of this sort may now be served upon mere formal defendants. The plaintiff must, however, be careful not to do so with respect to any party against whom substantial relief is sought. See this subject, already considered, under the head of Summons. For forms, see Appendix.

The second proceeding above alluded to, is the notice of pendency of action, commonly called notice of lis pendens, which, in all real estate cases, is admissible, and, in the case of foreclosure, indispensable.

The provisions of section 132, on this subject, are as follows:

§ 132. In an action affecting the title to real property, the plaintiff, at the time of filing the complaint, or at any time afterwards, may file with the clerk of each county in which the property is situated, a notice of the pendency of the action, containing the names of the parties, the object of the action, and a description of

the property in that county affected thereby; and if the action be for the foreclosure of a mortgage, such notice must be filed twenty days before judgment, and must contain the date of the mortgage, the parties thereto, and the time and place of recording the same. From the time of filing only, shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby.

It will be seen, then, that this proceeding is admissible at any stage of the suit, after the complaint is filed. In practice, however, it is universally taken at the commencement. The advantages of this course are obvious, in every case, and under all circumstances; and that, not merely in the county where the action is brought, but in every county in which there are any lands which can be affected by it, in case the property be scattered. No prudent practitioner will neglect taking this precaution, or will neglect taking it at the outset. By doing so, he places a stop upon the property, and prevents it from being subsequently dealt with, in prejudice of his client's rights. By omitting to do so, he leaves those rights still liable to be defeated by subsequent acts, notwithstanding the steps taken in the suit for their actual assertion.

In foreclosure, the filing of such a notice at least twenty days before judgment is rendered, is, as will be seen, a condition precedent to obtaining the relief demanded.-See also Rule 49, of the supreme court, and Brandon v. McCann, 1 C. R. 38. Inasmuch as a full description of the suit in general, and particularly of the property affected, is a necessary incident to the validity of a notice of this description, it seems to follow, as a necessary consequence, that if the plaintiff, after filing his notice, subsequently amend his complaint in substantial matter, either as regards the parties to the action, the premises affected, or the relief claimed, a new notice should be filed in accordance with the fresh matter pleaded, and such is the general practice.

Forms of this proceeding are given in the Appendix.

The due filing of the notice may be proved, either by affidavit, or by the certificate of the county clerk with whom it is filed. In all cases, therefore, a duplicate copy should be kept, on which that certificate may be endorsed; or for the purpose of being annexed to the required affidavit, where that form is adopted.

The proceedings of the plaintiff, in the event of the defendant's failure to answer in due time, will be found detailed in a

subsequent chapter of the work, under the head of Judgment by Default.

The various provisional remedies which are obtainable by the plaintiff, either as collateral with, or subsequent to the complaint, are also separately considered in a subsequent division of the work.*

CHAPTER II.

OF THE DEFENDANT'S COURSE OF ACTION, ON BEING SERVED WITH PROCESS.

THE present chapter will be devoted to the consideration of the different proceedings, which may, or which must be taken by the defendant, on being served with process, including, in the last place, the time allowed to him for the purpose of pleading in the action.

In the first instance, the summons itself should be carefully examined, to see whether it be or be not in any manner defective; and, if so, the objection on that ground must be taken at once. The proper proceeding for this purpose is a motion.See Nones v. The Hope Mutual Insurance Company, 8 Barb. S. C. R. 541; 5 How. 96, 3 C. R. 161; and that motion must be made at once, and without any previous notice of appearance. If such notice be given, the defendant, by taking that course, will have admitted himself to be regularly in court, and, having done so, all defects in the summons, or its service, or even the want of any summons at all, will then become immaterial.-Dix v. Palmer, 5 How. 233, 3 C. R. 214.—Flynn v. The Hudson River Rail

* In the recent case of Bristol v. Rensselaer and Saratoga Railroad Company, 9 Barb. S. C. R. 158, published since the earlier portions of this chapter went to press, the principle that the plaintiff will not be at liberty to make out his cause of action by proving facts not alleged in his complaint, is positively and strictly laid down. The omissions of allegations that the defendants were common carriers, that they had received, or were to receive, compensation for carrying the goods, for the non-delivery of which the action was brought,—and that they were to receive a reward for carrying those goods, were held to constitute fatal defects. No allegations having been made of those facts, it was accordingly decided that they could not be proved. If, too, a demand of the goods be necessary, to show the plaintiff's right of action, it ought also to be alleged in the complaint. The Referee's Report in that case was accordingly set aside, on the above grounds.

road Company, 6 How. 308; 10 L. O. 158. The different points in which summons may be defective, have already been enlarged upon in the chapter devoted to its consideration.

After any preliminary objections to the summons itself shall have been thus disposed of, the next point to be attended to, is the giving due notice of appearance by the defendant's attorney. This is a most essential precaution, and should be looked to at once, as it may often be highly advisable, even when a defence to the action is not contemplated. If omitted, the defendant will not be entitled to further notice in the suit, whilst, if he appear in due form, he must be served with such notice in all cases, and particularly with reference to the entry of judgment under sec. 247. It will thus be in his power to supervise the plaintiff's subsequent proceedings, with reference to the amount of his demand or otherwise.

Of course if any objection exists to the summons, or on the ground of deficient service, the defendant's attorney must give no such notice till the question shall have been decided. See Dix v. Palmer, and Flynn v. The Hudson River Railroad Company, above cited. If, pending the motion for that purpose, the time for answering should be drawing out, he may apply for a stay of all proceedings until the decision of the motion, and some reasonable time after, but without prejudice to the questions raised upon the motion. Such an order as this would probably be held not to be a recognition of the validity of the plaintiff's proceedings.

Even when a copy of complaint has been served with the summons, the sooner notice of appearance is given the better. No particular form is required for such notice, but it should be in writing, and served on the plaintiff's attorney. (See rule 7 of the supreme court.) Where, however, the summons has been served alone, the notice should be accompanied by the demand of a copy of the complaint, and, in these cases, the immediate service may, or may not, be a matter of expediency. Where delay is not an object, of course the defendant will be anxious to gain an insight into his adversary's case, as soon as possible: but, where he wishes, on the contrary, to gain time, he may, under sec. 130, delay further proceedings on the part of the plaintiff, for twenty days, by serving the notice on the last day allowed for that purpose.

The demand as above, must, under the special provisions of sec. 130, be in writing, and must specify a place in the state

where that copy may be served. It may be made either in person or by attorney, though, if an attorney have been employed in the action, the latter will be the proper person to make it in all cases; and the party making it will, of course, take care to name his real place of residence or business, in order to ensure the direct service upon him of all subsequent notices or papers in the suit. (V. Rule 5 of the supreme court, and sec. 417 of the Code.) For Form of notice and demand, see Appendix.

Under the Code of 1849, this proceeding could only be taken within ten days after service of the summons. If not demanded within that time, the plaintiff was not bound to serve a copy of his complaint afterwards, unless by special order of the court.Bennett v. Dellicker, 3 C. R. 117; in which case an order denying a copy of the complaint under such circumstances, was sustained. As general rule, however, the courts were disposed to grant an application for that purpose, but, of course, upon proper terms. See the same case, and also Engs v. Overing, 2 C. R. 79.

In both these cases a strong bias was shown by the court in favor of the plaintiff's filing his complaint at once, in all cases where a copy is not served.

In Toomey v. Shields, 9 L. O. 66, it was even held that he was obliged to do so within the time allowed to the defendant to answer, and a judgment obtained in the usual mode was actually set aside on the ground that this had been omitted. It seems clear, however, that the conclusion in this last case is erroneous. The Code contains no provision whatever to warrant it.

Under the recent amendment, these questions are no longer likely to arise, the defendant's power to demand a copy of the complaint being now extended to twenty days, the full period allowed him to answer.

Under the Code of 1849, no period was limited within which the copy of the complaint so demanded was to be served, and there was, in consequence, a great division of opinion among the judges upon the subject. In Littlefield v. Murin, 4 How. 306, 2 C. R. 128, twenty-four hours was considered a reasonable time; and in Walrath v. Killer, 2 C. R. 129, similar views are enounced. Forty-nine days were clearly held to be an unreasonable time in Ecles v. Debeard, 2C. R. 144. In Colvin v. Bragden, 5 How. 124, 3 C. R. 188, and Munson v. Willard, 5 How. 263, 3 C. R. 250, twenty days was fixed upon as a proper period,