rule 32 of the supreme court. the case and submission have been prepared and signed, the matter takes, in all respects, the shape of an appeal to the general term, from the decision of a single judge upon a case. The papers must be printed and served, points prepared, and the whole case conducted precisely as prescribed in relation to the latter. See hereafter under the head of appeals.

From the moment in fact that

On the decision of the court on the matter thus brought before it being pronounced, judgment is to be entered thereon exactly as in other cases, but without costs for any proceedings prior to notice of trial. The judgment roll is to consist of the case, the submission, and a copy of the judgment, sec. 373. When entered, such judgment may, under sec. 374, be enforced in the same manner, and subject to the same right of appeal, as if it had been entered in a regular action at that particular stage, and the appeal therefrom lies direct to the court of appeals, without the intervention of any intermediate tribunal.

These provisions, in effect, enable parties wishing an amicable settlement of a controversy between them, to place their case precisely on the same footing as if, after having gone through all the regular stages, it had been passed upon by a single judge, and an appeal taken from that decision to the general term but without the delay and expense consequent on the ordinary proceedings for that purpose.

:

No case appears as yet to have arisen with reference to these provisions; at least, no decisions on the subject appear in any of the reports. They are, in fact, of a nature little likely to give rise to controversy as to their form, the whole proceeding being one of an amicable nature, and only adoptable on express agreement of the parties.

The other mode of settlement above noticed is the confession of a judgment without action. By this proceeding the full benefits of an action are secured to the intended plaintiff, without the corresponding expense to the defendant. It is, therefore, a measure of frequent occurrence, where the latter possesses no real defence, and has no wish to evade his responsibility; or where an arrangement is made between the parties, for security in respect of a present, or indemnity against a future indebtedness. It is equivalent to the cognovit or warrant of attorney, under the old practice, and in the English courts. In the latter, an analogous proceeding is of frequent occurrence,

in the shape of an order obtained by the defendant, for the plaintiff to show cause why, on a stipulation that he is to be at liberty to enter up judgment at a fixed date, in default of payment of debt and costs at that period, all interim proceedings should not be stayed.

The main part of the provisions of the Code on this subject were contained in the measures of 1848 and 1849; but the alterations on the amendment of 1851 are important, the larger portion of sec. 384 being new.

This proceeding may be taken for the purpose of securing to the confessee any amount, either due or to become due, or to indemnify him against any contingent liability; and provision may be made for the entry of the judgment, either immediately, or at any future specified date. The mode of proceeding is specified by sec. 383, as follows:

§383. A statement in writing must be made, 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 authorize 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.

In the Appendix, a form is given, adapted to each of the above contingencies. Where the security is for the purposes of indemnity against future liabilities, the statements of fact must necessarily vary according to the peculiar circumstances. The great thing to be looked to is the making a concise and clear exposition of the actual facts, in much the same manner, and governed by the same general principles, as are subse quently laid down in reference to averments of fact in pleading.

By sec. 384, the mode of entering judgment on such a statement, and of enforcing such judgment, when entered, are prescribed in terms. This branch of the subject will hereafter be considered, under the heads of Judgment and Execution; the former differing very slightly, and the latter in no respect, except one, from the usual practice in such cases. The peculiar provision alluded to is of recent insertion, and is to the effect,

that, where a confession of judgment of this nature shall have issued for the payment of a sum by instalments, execution may from time to time be issued for the instalments then actually due, without prejudice to the renewal of the same proceeding, for the recovery of any subsequent payments.-Sec. 384. (See hereafter, under the head of Execution.)

It will be remembered that, in cases where the amount confessed does not exceed $250, justices of the peace have the power to enter judgment on confession, under art. VIII. title IV. c. II. part III. of the Revised Statutes; the defendant in such cases being, however, obliged to appear before the justice in person. (See former chapter as to proceedings in these courts.)

A confession of judgment, under the Code, cannot be made in an action arising out of tort. The proceeding is only authorized in respect of money due or to become due, or for security against a contingent liability. These are the only cases affected. by the Code.-Boutel v. Owens, 2 Sandf. S. C. R. 655; 2 C. R. 40.

It would seem, by the same case, as if these provisions were not applicable to the case of confession of judgment, in a suit already commenced, though this is doubtful. It is, however, quite clear, that where such confession takes place whilst the party is actually in custody, and without the presence of an attorney or counsel to advise him in the matter, the judgment entered on it will be void.-Same case. (See also Wilder v. Baumstack, 3. How. 81. This is in accordance with the rigid rules and practice of the English courts, under similar circum

stances.

By sec. 384 the judgment to be entered on a confession of this nature must be endorsed upon the statement, and also entered in the judgment book. It will be most essential that these rules be literally complied with on all occasions.

These provisions, however imperative, are nevertheless directory in their nature, and therefore the court will not allow an innocent party to suffer from a mistake or omission of one of its officers in this respect; Neele v. Berryhill, 4 How. 16.

The same principle, as to these provisions being merely directory, is also fully sustained in Park v. Church, 5 How. 381; 1 C. R. (N.S.) 47. It was there held that, where the defendants had confessed judgment "for a certain amount, but omitted in direct

terms to authorize its entry," the judgment could not be set aside for irregularity, the words omitted being merely directory, and the authority being to be implied from the confession itself. It was also held that the defendant could not even be heard to object after the lapse of a year, which had occurred, which lapse, of itself, barred all relief for irregularity; 2 R. S. 282, sec. 2. In the same case, a liberal construction was put upon a stipulation binding the plaintiff not to issue execution for a limited period, unless, upon actual examination of the books, &c., of the defendants, "he should have good reason to believe himself insecure." The court refused to set aside the execution though the plaintiffs had not actually examined the books, it appearing clear, from other circumstances, that he had such good

reason.

CHAPTER III.

OF SUMMONS, AND ITS SERVICE.

THE proceedings preliminary to the bringing of an action in the regular form having thus been considered, we now arrive in due course at the primary proceeding in such action when brought, i. e., the issuing and service of the summons by which it is originally commenced. This process is indispensable for the due bringing of an action in all cases, although, for the purposes of acquiring jurisdiction, and with reference to the statute of limitations, an action may, under peculiar circumstances, be held to have been commenced by the allowance of a provisional remedy, before the summons has been actually served. (See Moore v. Thayer, 6 How. 47; 3 C. R. 176.)

In one case, and one only, the issuing of summons will not only be unnecessary, but unadviseable, and that is with reference to monies collected by an attorney and not paid over on demand, in respect of which an attachment is issuable under the revised statutes. If, instead of issuing such attachment, the client bring an action in the ordinary course, the right to

the former remedy will be held to have been waived, and it cannot be afterwards obtained; Cottrell v. Finlayson, 4 How. 242.

The nature and form of summons are thus indicated by the Code:

§ 128. The summons shall be subscribed by the plaintiff, or his attorney, and directed to the defendant, and shall require him to answer the complaint, and serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the state, to be therein specified, in which there is a post-office, within twenty days after the service of the summons, exclusive of the day of service. § 129. The plaintiff shall also insert in the summons a notice, in substance as follows:

1. In an action, arising on contract for the recovery of money only, that he will take judgment for a sum specified therein, if the defendant fail to answer the complaint in twenty days after the service of the summons.

2. In other actions, that if the defendant shall fail to answer the complaint, within twenty days after service of the summons, the plaintiff will apply to the court for the relief demanded in the complaint.

It will be seen from these provisions, that the following are indispensable requisites to the regularity of this important pro

cess:

1. That the summons should be subscribed by the plaintiff or his attorney.

2. That it should be directed to the defendant.

3. That he should be formally required thereby to answer the complaint in the action.

4. That the place where his answer is to be served should be distinctly specified.

5. That the time within which such service should be made should also be distinctly pointed out.

6. That he should be distinctly warned that, in the event of his not answering, judgment will be taken against him.

7. That the nature of the judgment to be so taken should be distinctly and unmistakably indicated.

With reference to the last of these requisites, the process in question may also be classified into two separate branches, i. e., 1, summons for payment of a money demand, and, 2, summons for relief; the first embracing all actions arising on contract, in