I. the undersigned, the referee to whom it was referred, by an order of this court, made the day of , 1862, to

[Here insert terms of order.]

do respectfully report: that I have examined the complaint proposed to be made by the said petitioner, and am of opinion that the said petitioner has a meritorious cause of action, which is cognizable in this court, and has reasonable grounds for bringing an action therein against the said C. D.; and, further, I am satisfied, from the proof produced before me, that the said petitioner is entitled to prosecute such action as a poor person.

And I do further report the name of E. F. as a suitable person to be assigned as attorney and counsel, to prosecute such action on behalf of the petitioner.

G. H., Referee.

held in and for the county 1863.

day of

vs.

C. D.

On reading and filing the petition of the said A. B., and the report of G. H., referee, made in pursuance of an order of this court, dated the day of 1862, and on motion of E. F., of counsel for the said A. B.-It is ordered that the said A. B. be, and he is hereby, admitted to prosecute the action against C. D., in the said petition and report referred to, in this court, as a poor person, and that E. F. be assigned to him as his attorney and counsel, for that purpose.

XIII.

APPLICATION FOR LEAVE TO BRING ACTION UPON A JUDGMENT.

Vol. I., § 45 (g); Code § 71.

ON APPLICATION TO THE SAME COURT.

Affidavit.

Title, &c.

A. B., the above-named plaintiff, being duly sworn, deposes and says, that, on the day of judgment was rendered in the above entitled action by this court, in favor of this deponent, against C. D., the defendant above-named, for the sum of damages and costs (or, if the judgment be of any other

nature, state what that nature is, and its effect).

That no portion of such judgment has ever been paid by the said C. D., but the sum of $ principal and interest, now remains due thereon to this de

ponent.

980

[If any portion has been satisfied, vary statement accordingly.] That, &c.

[Here allege, in detail, such facts and circumstances as may be necessary to show the position of the matter, and the reasons why relief cannot be obtained by the plaintiff by the ordinary process of execution, either issued as of course, or by leave of the court under section 284.]

That, under the facts and circumstances herein before alleged, deponent is, as he is advised by counsel, and verily believes, remediless in the premises, unless leave be granted to him by this court, to commence an action upon the said judgment against the said C. D., pursuant to the provisions of the Code of Procedure in that behalf.

NOTICE OF MOTION.

Title, &c.

Take notice, that upon the pleadings and proceedings in the above entitled action, and upon the affidavit, a copy of which is served herewith, this court will be moved, &c.

that the plaintiff be at liberty to bring and prosecute an action in this court against the defendant, upon the judgment of this court, rendered in favor of him, the said plaintiff, against the said defendant, for the sum of

, upon the day of as in the said affidavit mentioned, or that such further or other order be made for the relief of the plaintiff, in the premises, as may be just.

APPLICATION FOR LEAVE TO SUE UPON A JUSTICE'S JUDGMENT. Present petition to the Supreme Court, or to the county court of the county in which such judgment was rendered.

Aver upon that petition as follows:

The recovery of the judgment, adding to the statement of the date of recovery, to wit, within five years now last past.

Continue averments, substantially to the same effect as in the affidavit given in the preceding form.

But introduce a special allegation, substantiating the existence of one or other of the categories mentioned in section 71, i. e.,

The death of the justice who rendered the judgment.

His incapacity to act, stating the reasons why he is incapable.

His removal from the county.

That the process was not personally served on the defendant, or, if more than one, then that it was not served on one of such defendants, giving his name. That one or more of the parties is dead, stating which; or

That the docket or record of such judgment is lost, or destroyed, stating facts to show its destruction, or, if it be lost, showing that diligent inquiry has been made for the purpose of finding it, but without success.

Pray relief to the same effect, as asked in the notice of motion above given.

Serve petition on the defendant, against whom the action is proposed to be brought, accompanied by notice of motion in the usual form.

Title, &c.

XIV.

CONFESSION OF JUDGMENT.

Vol. I., SS 47, 48; Code, §§ 382 to 384.

STATEMENT FOR JUDGMENT.

of

I do hereby confess judgment in this cause, in favor of

for the sum

and authorize judgment to be entered therefor against me, (on or after the , if the entry be suspended for any definite

period).

day of

When for debt due, or to become due, continue thus:

This confession of judgment is for a debt justly due to the plaintiff, arising upon the following facts:

(Or "justly to become due," &c., if the fact be so.)

[State facts and circumstances in relation to debt, clearly and concisely, but with sufficient detail, carefully consulting the observations, in relation to different classes of cases, made in the different subdivisions of section 48, as applicable to the particular nature of the indebtedness, in respect of which the confession is proposed to be executed.]

If payable by instalments, add as follows:

The same to be paid and payable, at the times and in the instalments following, to wit:

The sum of

dollars, part thereof, on the

day of

terest thereon from the date hereof.

This confession of judgment is for the purpose of securing the plaintiff against liability arising upon the facts hereinafter set forth, and does not exceed the amount of such liability.

[State facts and circumstances in relation to liability.]

(Defendant's signature.) County of SS. The defendant, C. D., above named, being duly sworn, says, that the facts, stated in the above confession, are true; and further he says not.

Sworn to before me, this

}

Indorse memorandum to be signed by clerk, as follows:

C. D.

On filing the within statement and confession, it is adjudged by the court, that the plaintiff do recover against the defendant the sum of

with five dollars costs.

dollars,

XV.

SUMMONS.

Vol. I., § 50; Code, §§ 127, 128, 129.

In all cases, prefix the correct title of the cause.

Title, &c.

FOR MONEY DEMAND ON CONTRACT.

When Complaint Served.

To the defendant above named,

(Or defendants, as the case may be).

You are hereby summoned and required to answer the complaint in this action [of which a copy is herewith served upon you], and to serve a copy of your answer to the said complaint on the subscriber, at his office, Number

street, in the city of

within twenty days after the service hereof, exclusive of the day of such service; and if you fail to answer the said complaint within the time aforesaid [the plaintiff will take judgment against you for the sum of with interest from the

dollars

of one thousand eight hundred of this action]. Dated,

and

day besides the costs

A. B., Plaintiff's Attorney.

N. B.-The address of the attorney, or party subscribing, or the place within the state at which he requires the copy answer to be served, must be exactly and specifically given.

If the plaintiff sue in person, he should substitute the words, "plaintiff in person," for plaintiff's attorney, after his signature.

If several sums, bearing interest from different dates, be included in the same summons, state each demand separately, as thus:

For the sum of $3,000 (aggregate claim), with interest on the sum of $1,000, part thereof, from the

thereof, from the

thereof, from the

day of day of day of

; on the sum of $1,000, further part ; and on the sum of $1,000 residue besides the costs of this action.

When Complaint not Served.

Substitute for the first clause between brackets, "of which a copy, &c."

In ordinary cases, as follows:

"Which will be filed in the office of the clerk of the county of

or, if in a local court, in the office of the clerk of the

it correctly.

court, &c., specifying

(giving date

Where service is made by publication, thus (Code, § 135): which was filed in the office, &c., on the

coincident with, or antecedent to date of summous.)

day of

In real estate cases, where service is not by publication, the following may be used instead of the last (Code, § 132).

Which has been filed, &c.

SUMMONS FOR RELIEF.

Substitute for the concluding words between brackets, "the plaintiff will take judgment," &c., the following:

The plaintiff will apply to the court for the relief demanded in the complaint. In all other respects, follow the directions above given.

SUMMONS TO ENFORCE JUDGMENT IN CERTAIN CASES.

VOL. II., § 271; Code, §§ 375-378.

Against Joint Debtor, not Served with Original Process, under Section 375. Title, &c.

To the defendant, A. B. (naming him).

sum of

day of

You are hereby summoned, and required to show cause, within twenty days after the service hereof, why you should not be bound by the judgment entered in this action on the in the office of the clerk of, &c., in favor of the above-named plaintiff, against all the above-named defendants, for the dollars, debt, damages, and costs, in the same manner as if you, the said A. B., had been originally summoned; and if you fail to show such cause, you will be bound by such judgment, and execution will be issued against you accordingly. Dated, &c. A. B., Plaintiff's Attorney.

Subscription is essential to the validity of this process, and must be made by the judgment-creditor, his representatives, or attorneys. Code, § 377. If by either of the two former, add proper designation.

Against Heirs, &c., of Deceased Judgment-Debtor, under Section 376.

Court.

A. B.

VS.

C. D. and E. F., Heirs (or otherwise, as the case may be) of G. H., a judg

ment-debtor, deceased.

To the defendants above named:

You are hereby required and summoned to show cause, within twenty days after the service hereof, why the judgment entered in this action against the said G. H., a judgment-debtor deceased, on the

day of

in the office of the clerk of, &c., for the sum of, &c., (specify amount) should not be enforced against the estate of the judgment-debtor in your hands respectively; and if you fail to show such cause, the same will be so enforced, and execution issued accordingly. Dated, &c.

Sce last form, as to subscription.

A. B., Plaintiff's Attorney.

AFFIDAVIT TO ACCOMPANY SUMMONS IN THE LAST TWO CASES.

Title, &c.

Code, § 378.

at

day of in the said county

A. B. (attorney or party subscribing the summons), being duly sworn, deposes and says, that the judgment entered in this action on the in the office of the clerk of the county of [against the above-named defendants], for the sum of damages, and costs, has not been satisfied, to his, this deponent's knowledge, or information and belief, and that the sum of dollars is now due thereon.

dollars, debt,

If the judgment is sought to be enforced under section 376, substitute for words between brackets, "against G. H., deceased," and add at the conclusion, "from the estate of the said G. H."