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A confession of judgment is not authorized, on a demand for a trespass upon real and personal property. And 'a confession of judgment out of court by a defendant in custody, on an arrest for the cause of action confessed, made without the counsel or advice of an attorney acting in his behalf, is void, and will be set aside on motion. Boutel vs. Owens, 2 Sand.

S.C., 2 Code Rep. 40. Statement 383. [Sec. 336.) A statement in writing must be made, in writing, and form signed by the defendant and verified by his oath, to the

following effect :

1. It must state the amount for which judgment may be entered, and authorise the entry of judgment therefor.

2. If it be for money due or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor is justly due, or to become due.

3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability, and must show that the sum confessed therefor does not exceed the same.

What is a sufficient statement on a judgment entered on confession. Park agt. Church and Atwell, 5 How. 381.

$384. [Sec. 337.] The statement may be filed with a county entering clerk or with a clerk of the superior court of the city of Newjudgmeni.

York, who shall endorse upon it and enter in the judgment book 1849, 1851. a judgment of the supreme or said superior court for the amount

confessed with five dollars costs, together with disbursements. The statement and affidavit with the judgment endorsed, shall thenceforth become the judgment roll. Executions may be issued and enforced thereon in the same manner as upon judgments in other cases in such courts. When the debt for which the judgment is recovered is not all due or is payable in instalments, and the instalments are not all due, the execution may issue upon such judgment for the collection of such instalments as have become due, and shall be in the usual form, but shall have endorsed thereon by the attorney or person issu

same, a direction to the sheriff to collect the amount due on such judgment with interest and costs, which amount


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shall be stated with interest thereon and the costs of said judgment. Notwithstanding the issue and collection of such execution, the judgment shall remain as security for the instalments thereafter to become due; and whenever any further instalments become due, execution may in like manner be issued for the collection and enforcement of the same.


Amended 1951.

Offers of the defendant to compromise the whole or a part

of the action.
SECTION 385. Defendant may serve offer to compromise and the proceed-

ings thereon.
386. Defendant may offer to liquidate damages conditionally.

387. Effect of acceptance or refusal of offer. $385. [Sec. 333.] The defendant may at any time before the Defendant trial or verdict, serve upon the plaintiff an offer in writing to al-ofter to low judgment to be taken against him, for the sum or property, the pro

mise, and

ceedings or to the effect therein specified with costs. If the plaintiff ac- thereon. cept the offer, and give notice thereof in writing within ten days, he may file the summons, complaint and offer, with an affidavit of notice of acceptance, and the clerk must thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence, and if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs, but must pay the defendant's costs, from the time of the offer.

Although the defendant may obtain costs, he is not entitled to an extra allowance. McLees agt. Avery, 4 How. 441; S. C., 3 Code Rep. 102.

An offer to allow judgment to be taken, when signed by the attorney is sufficient. Sterne vs. Bently and McLaughlin, 3 How. 331.

386. [Sec. 339.] In an action arising on contract, the Defendant defendant may, with his answer, serve upon the plaintiff an to liquidate

damages offer in writing, that if he fail in his defence, the damages be condition

alıy. assessed at a specified sum; and if the plaintiff signify his acceptance thereof in writing, with or before the notice of trial, and on the trial have a verdict, the damages shall be assessed accordingly.

may offer


Effect of acceptance or refusal of offer.

$387. [Sec. 340.] If the plaintiff do not accept the offer, he shall prove his damages, as if it had not been made, and shall not be permitted to give it in evidence. And if the damages assessed in his favor shall not exceed the sum mentioned in the offer, the defendant shall recover bis expenses, incurred in consequence of any necessary preparation or defence in respect to the question of damages. Such expense shall be ascertained at the trial.

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Admission or inspection of writings.
Section 388. A party may be required to admit a paper to be genuine, or

pay expense of proving it. Inspection and copy of books,

papers and documents, how obtained. Inspection $388. [Sec. 341 & 342.] Either party may exhibit to the othof books er, or to his attorney, at any time before the trial, any paper, documents

, material to the action, and request an admission in writing of

its genuineness. If the adverse party or his attorney fail to Amended give the admission, within four days after the request,

and if the party exhibiting the paper be afterwards put to expense in order to prove its genuineness, and the same be finally proved or admitted on the trial, such expense to be ascertained at the trial, shall be paid by the party refusing the admission ; unless it appear to the satisfaction

! of the court that there were good reasons for the refusal. The court before which an action is pending, or a judge or justice thereof, may in their discretion, and upon due notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy of any books, papers and documents in his possession, or under his control, containing evidence relating to the merits of the action, or the defence therein. If compliance with the order be refused, the court, on motion, may exclude the paper from being given in evidence, or punish the party refusing, or both.

The provision of the Revised Statutes relative to the production of books and papers is still in force. Stanton vs. the Delaware Mutual Ins. Co.,


Sand: 662; Follett vs. Weed and Weed, 3 How. 303; S. C., 1 Code Rep. 65; S. C. 3 How. 360. Hooker and others agt. Matthews and Frear, id. 329; Brown and others agt. Babcock and others, 1 Code Rep. 66; South. art vs. Dwight, 2 Code Rep. 83.

To excuse a party from discovering a paper sought for, he must swear positively that it is not in his possession or under his control. Southart vs. Dwight, 2 Sand. 672. S. C. 2 Code Rep. 83.

All proceedings instituted under this section must be governed by its provisions, uncontrolled and unaffected by the rules. The Exchange Bank vs. Monteath and others, 4 How. 280; S. C.; 2 Code Rep. 148.

An order of discovery may be obtained against a party to obtain copies of documentary evidence upon which the latter is relying to sustain himself upon the trial. Powers and Kiersted vs. Elmendorf, 4 How. 60.

The order may be obtained and enforced before issue joined. Miller and others agt. Mather and others, 5 How. 160.

Supreme Court Rules, 8, 9, 10, 11.


Examination of parties.
Section 389. Actions for discovery, abolished.
390. A party may examine his adversary as a witness, on the

391. Such examination also allowed before trial. Proceedings

392. Party how compelled to attend.
393. Testimony of party may be rebutted.
394. Effect of refusal to testify.
395. Testimony by a party not responsive to the inquiries, may be

rebutted by the oath of the party calling him.
396. Persons for whom action is brought or defended, may be

examined. 397. Examinations of co-plaintiff or co-defendant. § 389. [Sec. 343.) No action to obtain discovery under Act'on for

discovery oath, in aid of the prosecution or defence of another ac- abolished. tion, shall be allowed, nor shall any examination of a party be had, on behalf of the adverse party, except in the manner prescribed by this chapter.

The abolition of bills of discovery does not apply to the examination of a debtor touching his property in the nature of a creditor's suit, but to the ord ry discovery sought by bills and made by inswers. Dunham vs. Nicholson, 2 Sand. 686.

§ 390. [Sec. 344.] A party to an action may be examin- A party ed as a witness, at the instance of the adverse party, or of amine his

adversary any one of several adverse parties, and for that purpose an uwe trial.

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may be compelled, in the same manner, and subject to the same rules of examination, as any other witness to testify, either at the trial, or conditionally, or upon commission.

A co-defendant, who is primarily liable for the debt claimed, is a compe. tent witness for the plaintiff. Bank of Charleston vs. Emeric and Davenne, 2 Sand, 718.

In an action against “the mayor, aldermen, &c., of the city of New-York,” one of the aldermen is a competent witness for the defendant. Pack ys. The Mayor, &c., of the city of New York, 3 Com. 489.

A person otherwise incompetent as a witness will not be made competent by making him a party. Pillow and wife vs. Bushnell and others, 4 How. 9.

A party residing out of the State may be examined on commission.

Brockway vs. Stanton, 2 Sand. 640. Such ex

§ 391. [Sec. 315.] The examination, instead of being amination also allow had at the trial as provided in the last section, may be trial. Proceed- had, at any time before the trial, at the option of the party ings there

claiming it, before a judge of the court or county judge, Amended on a previous notice to the party to be examined, and any

other adverse party, of at least five days, unless for good cause shown, the judge order otherwise. But the party to be examined, shall not be compelled to attend in any other county than that of his residence, or where he may be served with a summons for his attendance.

When a party undertakes to examine the adverse party as a witness, he must summon or subpæna the latter and pay him his fees for attending: an order from a judge is not necessary. Anderson vs. Johnson, 1 Sand. 713; Partin vs. Thackstone, 2 Code Rep. 66; Balbiani and others vs.

Grasheine, id. 75; Taggard vs. Gårdner, 2 Sand. 667. Party, how § 392. [Sec. 346.] The party to be examined, as in the compelled to attend. last section provided,, may be compelled to attend, in the Amended same manner as a witness who is to be examined condi

tionally; and the examination shall be taken and filed by the judge in like manner, and may be read by either party

on the trial. Testimony $ 393. [Sec. 348.] The examination of the party thus of party mave de re- taken, may be rebutted by adverse testimony.




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