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serve upon the plaintiff an offer to allow judgment to be taken against him for the sum or property, or to the effect therein specified. If the plaintiff accept the offer, and give notice thereof within five days, he may file the summons, complaint and offer, with an affidavit of notice of acceptance, and the Clerk shall thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer shall be deemed withdrawn, and shall not be given in evidence ; and if the plaintiff fail to obtain a more favorable judgment, he shall not recover costs, but shall pay the defendant's costs from the time of the offer.

See N. Y. Code, ý 385.

1. If judgment is entered upon the cognovit and by its authority, then the amount acknowledged would have been the sum of the judgment; but where, upon complaint and answer denying the allegations thereof, the acknowledgment issued as evidence, interest may be given by way of damages. Hirschfield v. Franklin, 6 Cal. 607.

2. A cognovit is good as an admission in pais after answer is filed. Id.

3. The true meaning of the Statute, (Practice Act, sec. 390) authorizing the Clerk to enter judgment upon an offer on the part of defendant to suffer judgment for a specitied sum, etc., is, that he can enter judgment only when the offer is made after action is brought by the filing of the complaint, and while pending; and where a party hands to the Clerk the complaint, offer of judgment and notice of acceptance of the other, at the same time, and thereupon the Clerk enters judg. ment, it is void. Crane v. Hirschfelder, 17 Cal. 582.

4. It is presumed that an offer may now be made in every action. Sterne v. Bently, 3 IIow. Pr. 331 ; 1 Cal. R. 109.

5. An offer signed by the Attorney is good. Id.

6. If the cause is tried before the five days expire, the rights of the parties are in all respects as if no offer had been made. Ruggles v. Fogg, 7 How. 324.

7. Where a defendant makes an offer, he is precluded from taking any steps in the cause until the acceptance is served. Walker v. Johnson, 8 How. Pr. 240

8. An offer may be made by one of several defendants, who have been served, so as to admit of a judgment against the individual property of the one making the otter, and the joint property of all the defendants. "Olwell v. McLaughlin, 10 N. Y. Leg. Obs. 316.

9. Where A, B, and C, were sued jointly as joint debtors, and A was the only defendant served, and he made an offer under section three hundred and eighty. five, for plaintiff to take judgment for four hundred and ten dollars, and costs, the plaintiff

' accepted the otfer, and entered judgment against all the defendants as joint debtors : lleld, regular. Leppman v. Jackson, 1 Code Rep. N. Y. 161; Emery v. Emery, 9 How. Pr. R. 130.

10. In an action against partners, where all had been served with summons, the plaintiff, before time to answer had expired, entered judgment against all, upon an offer made by one without special authority from the others. The offer was signed in the firm name D. M. & Co., and with his individual name: Ifeld, that the judgment should be vacated on motion of junior judgment creditors. 1. “ The defendant,” on whose offer judgment may be entered, according to section three hundred and cighty-five of the Code, means sole defendant, or all the defendants who have been served. (La Farge v. Chilson, 3 Sandf. 752.) 2. A copartner has no implied authority to make such offer. (Everson v. Gehrman, 10 low. Pr. R. 301 ; Barney v. Le Gal, 19 Burb. 592; Rathbun v. Drakeford, 6 Bing. 375; He Bride v. Hagen, 1 Wend. 326.) And if he were their attorney in fact, he must be approved by the Court as such. (Le Roy v. IIeily, 1 Duer, 637.) And his signature must be supported by proof embodied in the record. 3. An offer signed in the firm name is no authority to the Clerk to enter judgment against the partners. 4. The judgment could not be sustained against the partner who made the offer,

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because the roll showed that it was entered before the time of the others to answer had expired. Barney v. Le Gal, 19 Barb. 592; Bridenbecker v. Mason, 16 How. Pr. R. 203.

11. Though, in such case, it might be deemed that the parties defendant had, by laches, lost their right to move against the judgment, still it was void against junior judgment creditors. Barney y. Le Gal, 19 Barb. 592; Bridenbecker v. Mason, 16 How. Pr. R. 203.

12. It seems, that had M. employed an attorney to appear for all the defendants, and he had served the offer as such attorney, without fraud or collusion, the judgment would have been sustained. Grazebrook v. McCredie, 9 Wend. 437; Grisewold v. Grisewold, 14 How. Pr. R. 466; Barney v. Le Gal, 19 Barb. 592; Bridenbecker v. Mason, 16 How. Pr. R. 203.

13. Costs.-Plaintiff not entitled to where he recovers an amount less than offered by defendant. Pomeroy v. Hulin, 7 How. R. 161.

14. Where plaintiff failed to obtain a more favorable judgment than the amount was offered, but in the trial extinguished a set off, which with the verdict exceeded the defendant's offer, the plaintiff was entitled to full costs. Ruggles v. Fogg, 7 How. 324.

TITLE XI.

OF WITNESSES, AND OF THE MANNER OF OBTAINING EVIDENCE.

CHAPTER I.- Of Witnesses. Sec. 391. All persons may be witnesses except as specified in

this chapter. 392. No person shall be excluded for his religious belief. .

When a person may be excluded for interest. 393. The test of interest. A party may call the adverse

party. 394. Persons who shall not be witnesses. 395. Husband and wife shall not be witnesses for or against

each other. 396. Attorney shall not be examined as to a communication

made by a client, without consent. 397. Nor a priest as to any confession. 398. Nor a physician as to any information necessarily

acquired in that capacity. 399. Nor a public officer as to communications made in

official confidence. 400. The Judge or any juror may be a witness. . 401. When witness does not speak English, an interpreter

shall be sworn.

§ 391. All persons may be witnesses except as specified in this chapter.

All persons, without exception, otherwise than as specified in this chapter, may be witnesses in any action or proceeding.

J. P.

1. The whole tendency of the modern decisions with reference to the competency of witnesses, is to relax rather than to extend the rule of exclusion. Smith v. Rick mond, 19 Cal. 476.

2. An agent is a competent witness to testify as to his authority in performance of acts for his reputed principal. Tomlinson v. Spencer, 5 Cal. 291.

3. Books of account.-In suit on an account for services rendered and materials furnished in the course of his trade, and for articles furnished from his farm, by plaintiff, who was a blacksmith and farmer, he is a competent witness to prove to the Court his book of original entries, as preliminary to the introduction of the book in evidence. And having testified that ihc book was kept by himself; that it was his book of original entries in which he kept his accounts; that the entries were made by him at the time they purport to have been made; that be kept no other books, and had no clerk, the book was sufficiently proved to be admitted in evidence. Landis v. Turner, 14 Cal. 573.

$ 392. No person shall be excluded for his religious belief. When a person may be excluded for interest.

[1854.] No person offered as a witness shall be excluded on account of his opinions on matters of religious belief; nor shall any person be excluded on account of his interest in the event of the action or proceedings, except in the following cases :

1st. When he is a party to the action or proceeding, or the action or proceeding is prosecuted or defended for his immediate benefit ;

2d. When his interest is a present, certain, and vested interest. See $ 393, J. P.

1. Generally.-Sections three hundred and ninety-two and three hundred and ninety-three of the Practice Act are to be construed so as to exclude testimony, when the witness would be directly benefitted by it. Jones v. Post et al., 4 Cal. 14.

2. Under our statute, no person can be excluded as a witness on account of interest in the event of the action, unless he may be a party, or one for whose immediate benefit the action is prosecuted or defended. Tomlinson v. Spencer, 5 Cal. 291.

3. A party has a right to resort to other witnesses to prove that an adverse witness offered was the party in interest, with a view to exclude his testimony. 1 Phil. Ev. 134; Cow. and H. Notes, note 250; 2 Cow. 968; Healey v. Kingsley, 4 E. D. Smith's C. P. R. 286.

4. Opinion on matters of religious belief.-Practice Act, section three hundred and ninety-two, providing that no person offered as a witness shall be excluded on account of his opinion on matters of religious belief," and the fourth section, article first of the Constitution, to the same effect, mean that a witness is competent without respect to his religious sentiments or conviction—the law leaving his competency to legal sanctions, or, at least, to considerations independent of religious sentiments or convictions. Fuller v. Fuller, 17 Cal. 605.

5. Parties to the action or proceeding: -A defendant may be examined as a witness on behalf of his codefendant, if their interests are divisible. Beach v. Covillaud, 2 Cal. 237.

6. Where the evidence of one defendant is as available to himself as to his codefendant, this Court has always held, that one is incompetent to testify for the other, and the same rule prevails under like circumstances where the declaration is in tort, and the defendants are charged as joint tort-feasors. Johnson v. Henderson, 3 Cal. 368.

7. Under the statute a defendant cannot be a witness for his codefendant, where the defense is general and would operate in die hanno

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§ 391. All persons may be witnesses except as specified in this chapter.

All persons, without exception, otherwise than as specified in this chapter, may be witnesses in any action or proceeding.

J. P.
1. The whole tendency of the modern decisions with reference to the competency

Smith. y. Pich

Lafavalusion

Amendments to Secr. 391, 392, 393.—Passed April 27th, 1865.

[Takes effect sixty days after passage.] $ 391. All persons, without exception, otherwise than as speciful in this chapter, may be witnesses in any action or proceeding. Facts which have heretofore caused the exclusion of testimony, mas still be shown, for the purpose of affecting its credibility.

§ 392. No person shall be disqualified as a witness in any actior or proceeding on account of his opinions on matters of religious belief, or by reason of his interest in the event of the action or proceeding as a party thereto, or otherwise ; but the party or parties thereto, and the person in whose behalf such action or proceeding may be brought or defended, shall, except as hereinafter excepted, be competent and compellable to give evidence, either viva roce. or by deposition, or upon a commission, in the same manner and subject to the same rules of examination as any other witness, on behalf of himself, or either or any of the parties to the action or proceeding

$ 393. No person shall be allowed to testify under the provisions of section three hundred and ninety-two, where the adverse party, or the party for whose immediate benefit the action or proceeding is prosecuted or defended, is the representative of a deceased person, when the facts to be proved transpired before the death of such deceased person ; and nothing contained in said section shall affect the laws in relation to the attestation of any instrument required to be attested; nor shall anything contained in said section render any person who, in a criminal proceeding, is charged with the commission of any public offense, competent or compellable to give evidence therein for or against himself.

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