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stands, in an action on the judgment, they could only defend themselves on the ground of not being joint contractors, the first judgment being conclusive against them, on all other matters.
In the remaining part of this chapter, relating to executors, heirs, &c., we have changed the form of proceeding, to correspond with that in regard to joint debtors, so as to make it more easy and expeditious, than the old proceeding by scire facias, but have made no change in the policy of the law, except that costs are not given.
§ 328. When a judgment shall be recovered against one or more of several persons, jointly indebted up on a contract, by proceeding as provided in section 115, those who were not originally summoned to answer the complaint, may be summoned to show cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned.
$ 329. In case of the death of a judgment debtor after judgment, the personal representatives, heirs, devisees, or legatees of the judgment debtor, or the tenants of real property, owned by him and affected by the judgment, may be summoned to show cause, why the judgment should not be enforced, against the estate of the judgment debtor in their hands respectively.
$ 330. The summons, provided in the last two sections, shall be subscribed by the judgment creditor, his representatives, or attorney; shall describe the judgment, and require the person sumainoned, to show cause, within twenty days after the service of the summons;
and shall be served in like manner as the original gummons.
$ 331. The summons shall be accompanied by an affidavit of the person subscribing it, that the judgment has not been satisfied, to his knowledge, information or belief, and shall specify the amount due thereon.
$ 332. Upon such summons, the party summoned may answer within the time specified therein, denying the judgment, or setting up any defence which may have arisen subsequently; and in addition thereto, if he be proceeded against according to section 328, he may make the same defence, which he might have originally made to the action.
§ 333. The party issuing the summons, may reply to the answer, and the issue thereon may be tried and judgment given, in the same manner, as in an action.
$ 334. The answer and reply shall be verified in like manner, and be subject to the same rules, as the answer and reply in an action.
CONFESSION OF JUDGMENT, WITHOUT ACTION.
SECTION 335. Judgment on debt, or liability authorized.
336. Statement, and what it must contain,
A simple and summary mode of taking judgment by confession, without suit, is provided in this chapter. Judgments by confession, are a common mode of securing endorsers and sureties, when there is no real debt, and only a contingent lia
bility. Without prohibiting this kind of security, it is deemed expedient, in order to prevent the abuse of it, to require, in all cases, a statement of the true grounds and consideration of the judgment, to be made and sworn to, and to have this a part of the judgment roll, so that its purpose and intent cannot be denied or concealed.
Not only are judgments by confession perverted to fraudulent ends, under the existing laws, but the form of confessing the judgment is an idle ceremony. By it, a party designing to confess judgment in a court of record, executes a formal power of attorney, drawn up according to approved precedent, by which he gives general authority to an attorney of any court, to appear for him, receive a declaration, and put in a plea of confession. On the strength of this, an attorney draws up a declaration, as if there were a real action, an appearance of the defendant, and a formal plea to the action, confessing judgment. This he takes to some other attorney, who signs the appearance and plea, by virtue of the general power. Another copy of the pretended declaration is then made, and a copy of the plea, and the formal words of a judgment record, are added. This is taken to a judge, who goes through the ceremony of signing his name in the margin; the costs, though fixed by statute, are, nevertheless, duly faxed, and then the pleadings, anıl all the papers in the pretended suit, are carefully filed in the judicial archives.
§ 335. A judgment by confession may be entered, without action, either for money due or to become due, or to secure any person, against contingent liability on behalf of the defendant, or both, in the manner prescribed by this chapter.
§ 336. 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.
§ 337. The statement may be filed with the clerk ; who shall endorse upon it, and enter in the judgment book, a judgment for the amount confessed, with costs. The statement and affidavit with the judgment endors. ed, shall thereupon become the judgment roll.
OFFERS OF THE DEFENDANT, TO COMPROMISE THE WHOLE
OR A PART OF THE ACTION.
SECTION 338. Defendant may serve offer to compromise and the proceedings thereon.
339. Defen:lant may offer to liquidale damages con litionally.
In a previous part of the act, we have required the plaintiff in an action, arising on contract for the recovery of money only, to specify in his summons, the amount for which he will take judgment if the defendant fail to answer. In a case where the plaintiff has a just claim to a certain amount, which the defendant is not disposed to controvert, the specification in the summons enables the defendant to know, whether that is all the plaintiff seeks, and if so, he may, with perfect
safety, permit judgment by default, as the law limits the recovery, in that case, to the amount specified. On the other hand, where the plaintiff has a conceded good cause of action, for a certain amount, but claims a larger sum than the defendant is disposed to admit, and also where the defendant disputes the whole claim, but is willing to concede something, by way of compromise, rather than litigate, le may, under the provisions of this chapter, offer to permit judgment against him for such sum, as he deems just, or is willing to give for peace; and if the plaintiff does not accept it, but carries on the action, in order to recover a greater amount, he does it at the bazard of paying costs to the defendant, if he shall fail to establish a grcater claim.
This provision holds out inducements to both parties, to make fair offers to each other, for the purpose of avoiding a law suit, and makes it their interest to employ safe counsel, who will not advise a prosecution, or defence, without good cause. The same desire to avvid unnecessary litigation, and promote conciliation between parties, that is manifested in the constitution, in authorizing courts of conciliation, will doubtless prompt the legisl ture to adopt these conciliatory rules, in conducting actions before the ordinary tribunals.
These remarks have particular application to the first section of the chapler ; but are also appropriate, to some extent, to the two latter sections. In regard to these, however, the principal benefit hoped from them, is to save the time of courts and witnesses, and the expense to parties, in proving the amount of damages, in case the right to recover in the action, shall be established.
§ 338. In an action arising on contract, the defendant may, at any time before trial or judgment, serve upon the plaintiff, an offer in writing to allow judgment, to be taken against him, for the sum, or to the effeot therein specified. If the plaintiff accept the offer, and