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give notice thereof, within ten 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 If the notice of acceptance be not given, the offer shall be deemed withdrawn, and shall not be given in evidence; and if the plaintiff fail to obtain a more favorable judgment, he shall pay the defendant's costs, from the time of the offer
§ 339. In an action arising on contract, the defendant may, with his answer, serve upon the plaintiff an offer in writing, that, if he fail in his defence, the damages be 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.
$ 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 his expenses, incurred in consequence of any necessary preparation or defence in respect to the question of damages. Such expenses shall be ascertained at the trial.
ADMISSION OR INSPECTION OF WRITINGS.
SECTION 311. A party may be required to admit a paper to be genuine, or pay expense
of proving it.
The provisions of this chapter are in harmony with the whole spirit of our design; which is, to get at the facts in a legal con. troversy, by the shortest possible way, and that ai the expense of parties, rather than of witnesses.
The first section is taken, with some modification, from a practice recommended by the English Law Commissioners.
The second, provides for obtaining, in a summary manner, an inspection and copy of papers in the hands of the adverse party.
$ 341. Either party may exhibit to the other, or to his attorney, at any time before the trial, any paper, material to the action, and request an admission in writing of its "genuineness. If the adverse party or his attorney fail to 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.
§ 342. Either party may require of the other, at any time, an inspection and copy, or permission to take a
[P. & P.]
copy, of a paper in his possession, or under his control, containing evidence relating to the merits of the action, or the defence therein. If it be refused, the court, on motion, may exclude the paper from being given in evidence.
EXAMINATION OF PARTIES.
SECTION 313. Abolishes the action for discovery.
344. A party may call bis adversary as a witness.
by the oath of the party calling him.
$ 313. No action to obtain discovery under oath, in aid of the prosecution or defence of another action, 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.
§ 344. A party to an action may be examined as a witness, at the instance of the adverse party, or of any one of several adverse parties, and for that purpose 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.
§ 345. The examination, instead of being had as provided in the last section, may be had, at any time be
fore the trial, at the option of the party claiming it, before a judge of the court or a county judge, 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.
$ 346. The party to be examined, as in the last section provided, may be compelled to attend, in the same manner as a witness who is to be examined conditionally; and the examination shall be taken and filed in like manner, and may be read by either party on the trial.
$ 347. The examination of the party, thus taken, may be rebutted by adverse testimony.
$ 348. If a party refuse to attend and testify as in the last three sections provided, besides being punished himself as for a contempt, his complaint, answer or reply may be rejected.
$ 349. A party examined by an adverse party, as in this chapter provided, may be examined, on his own behalf, in respect to any matter pertinent to the issue. But if he testify to any new matter, not responsive to the enquiries put to him by the adverse party, such adverse party may offer himself as a witness on his own behalf, in respect to the new matter, and shall be se received.
$ 350. A person for whose immediate benefit the action is prosecuted or defended, though not a party to the action, may be examined as a witness, in the same manner, and subject to the same rules of examination, as if he were named as a party.
The provisions contained in this chapter, we hare considered so important to the success of our system, that from the first we have contemplated their introduction. Meantime the legislature, at their late session, have passed an act upon the subject. That act however, contemplates the examination at the trial only. We think it imporant to extend it so as to permit the examination to take place before the trial, at the option of the party.
Before the act of the last session, whenever a party sought a discovery from his adversary, he was obliged to file a bill in equity, called a bill of discovery. The proceeding was dilatory and expensive. If the examination be had at all, it may be had in the same action as well as in another. That it should be had in some form, our law has always admitted. The difficulty was, that the process to obtain it, was oppressive, and often ineffectual.
Two modes of examination have been proposed, one oral and the other uçon written interrogatories. The latter is the method of the civil law. We think the question is decided, by the act of December, and if it were not, we should still prefer the oral examination. A written deposition taken in private, is not the best means of eliciting the truth; nor do we see, why the law should be so tender of the consciences of parties, when it is so hard with the consciences of witnesses. These are brought into court, are made to waste their .ime about a matter not their own, and, when called to the stand, are subjected to the most searching and often offensive examination. Why should he, who has brought them there, be exempted from the same scrutiny?
One of the great benefits, to be expected from the examination of the parties, is the relief it will afford, to the rest of the