The plaintiff had an undoubted right to discontinue his action, and the court ordered it discontinued upon his suggestion contained in the motion to offset the costs. There was therefore no error in that portion of the order. McLeod v. Bertschy, ante, 176.
It is in the sound discretion of the court to grant or refuse leave to interpose a supplemental pleading. Were it otherwise, the statute would not require an application for leave to do so to be made to the court. R. S., oh. 125, sec. 41. It' being within the discretion of the court to grant such leave, it seems to follow that the court may impose equitable terms as a condition of granting the same. This practice has been sanctioned in New York under .a similar statute. Sage v. Mosher, 17 How. Pr. R., 367 ; Madison Avenue Baptist Church v. Baptist Church in Oliver Street, 2 Bosw., 642 ; Bate v. Fellowes, 4 id., 638. This rule is believed to be just and reasonable. The interposing of a supplemental pleading may work a continuance of the cause, or may, in other ways, result in expense and loss to the opposite party, for which he ought to be indemnified by the imposition of proper terms.
The true construction of the order in this case allowing a supplemental answer to be put in, is that the allowance thereof' was upon the terms or condition that the defendant pay the costs of the action to that time. Inasmuch as the proposed pleading contained an averment óf a fact which had but recently occurred, and which was supposed to be a bar to the *435action, were the order before us on appeal we could not say that it is entirely clear that the terms imposed are unreasonable ; and especially so, if, as is claimed, the order resulted in a continuance of the cause after the plaintiff had prepared for trial at much expense. But the order is not before us on appeal, and if it was presented for review by the former appeal (which, so far as the terms therein imposed are concerned, is at least very doubtful), it certainly was not disturbed by this court.
It is claimed that the defendant did not accept the order on the terms proposed. We do not see how this position can be maintained in view of the facts, which may fairly be inferred from the record, that the counsel for the defendant accepted service of the demurrer to the supplemental answer, and argued the same, without objection (so far as appears), and without claiming that no supplemental answer had been interposed, because the defendant refused to submit to the terms imposed as a condition precedent to interposing the same. It would seem that if the terms were repudiated, the plaintiff was entitled to notice of the fact when he proceeded in the case on the theory that the supplemental pleading had been interposed. Failing to give such notice, and treating the pleading as having been regularly interposed, we think it was too late, after the demurrer was decided, for the defendant to say that it repudiated the terms, and hence, that the pleading was never in the case.' It is quite true, that, in the first instance, it was optional with the defendant to pay the terms and take the benefit of the order, or to refuse to do so and forego such benefit. But when it took the benefit of the order, it elected to pay the terms.
We cannot think that the plaintiff waived his right to these costs by demurring to the supplemental answer before the same were paid. When the plaintiff took the benefit of the order, the right of the plaintiff to the costs imposed as terms became absoluté. He could have insisted upon a compliance *436■with such terms before accepting the supplemental answer, hut he was not compelled to do so, or waive his rights. The case in this respect is not unlike a continuance of a cause on terms which are not paid. The court will, at the same or a subsequent term, compel payment of the costs imposed as terms of the continuance, by awarding appropriate process for such purpose.
Were the defendant a natural person, these costs might have been collected by proceedings under sec. 4 of ch. 149, R. S., because the order awarding them is not a, judgment, within the meaning of the statute, upon which an execution may issue. This defendant being a town, the remedy given by ch. 149 is not available; yet the right of the plaintiff to recover the costs which have become due to him under the order of the court, remains unimpaired.
How may these costs be recovered? Without determining whether the proper town authorities can be compelled by mandamus to levy a tax and pay them, or whether the plaintiff can maintain an action against the town therefor, we are of the opinion that they may, upon equitable principles, be set off against any judgment for costs which the defendant may recover upon the discontinuance of the action. True, the costs due the plaintiff have not been awarded to him by the judgment of the court, and it is usually said that mutual judgments may be set off; Yet the costs are awarded to him by the direct action and order of the court; the amount is as definite, and his right thereto as absolute, as though they had been formally adjudged to him at the end of a litigation. Under such circumstances no good reason is suggested why such set-off should not be made. It seems to us that it may, equitably and lawfully, be allowed.
It is objected, however, that the order appealed from does not allow such set-off, but seeks, by stay of the defendant’s proceedings, to compel it to consent that the same be made. Such is the purport of the order. It attempts to do indirectly *437and "before judgment, what the court has power, after judgment, to do directly. The better practice would have been for the plaintiff, after judgment had been entered against him for the costs, upon the discontinuance of the action, to apply to the court to offset against such judgment the amount of costs which had been awarded to him, and the court would have so ordered.
But conceding that the course pursued is irregular, it is not perceived how it injures the defendant, or affects his substantial rights ; and if it does not, the order ought not to be reversed. R. S., ch. 125, sec. 40. When the case was here before, it disclosed the fact that the plaintiff had no cause of action; and had he insisted on another trial in the circuit court, only two or three witnesses were necessary to demonstrate the same fact, and "thus secure a verdict and judgment for the defendant. It would have been quite impossible for the defendant to have swelled its costs so as to entitle it to a judgment equal in amount to the costs which it is liable to pay the plaintiff. We must presume that at the term at which the order of discontinuance was made, the defendant only procured the attendance of necessary witnesses. Hence, were there no stay of proceedings, and should the defendant perfect judgment for its costs, the judgment could not, upon any correct taxation of costs, amount to $178. Now what possible consequence is it to the defendant, whether such judgment be entered and immediately satisfied by such set-off, or whether it be prevented from perfecting judgment until it consent to such set-off? Were it probable that there would be a balance in,, favor of the defendant, it might be different. It might then be held that the town should not be required to yield its right to contest the validity of the plaintiff’s claim, before it can have a judgment, when confessedly it would be entitled to a judgment, at least, for the surplus. Here the entry of a judgment would be a mere form, and not the slightest injury can result to the defendant by being restrained from entering it until he consents to the set-off. *438Eor these reasons, it becomes unnecessary to determine whether the order appealed from is or is not strictly regular, or whether the practice adopted by the circuit court can be held correct in all cases.
By the Court. — The order of the circuit court is affirmed.