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.

Where a confession of judgment commenced with the title of the cause, and then proceeded thus: "Judgment is hereby confessed in this cause, for the sum of $1,413," &c.; the statement being signed and sworn to by the defendant, held, that it was a sufficient authority under the code, to enter judgment. This part of the statute is directory merely. One year bars all relief for irregularity in entering judg. ment. (2 R. S., 282, s. 2.)

Where an execution contains all the requisites specified in s. 289 of the code (which prescribes the form), it is sufficient. Therefore, objections that it is not issued in the name of the people,” nor “tested in the name of the chief justice or any judge,” and is not "on its face made returnable within sixty days," are unavailable where there is an endorsement on the back directing the sheriff to return it in sixty days. Park v. Church, 1 Code Rep. N. S., 47.

§ 384. [337.] (Amended 1849-1851.) Judgment and execution. The statement may be filed with a county clerk, or with the clerk of the superior court of the city of New-York, who shall endorse upon it, and enter in the judgment book, a judg ment 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 installments, and the installments are not all due, the execution may issue upon such judgment for the collection of such installments as have become due, and shall be in the usual form, but shall have endorsed thereon, by the attorney or person issuing the same, a direction to the sheriff to collect the amount due on such judgment, with interest and costs, which amount 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 installments thereafter to become due; and whenever any further installments become due, execution may, in like manner, be issued for the collection and enforcement of the same.

Before the amendment for 1851 the section stopped where the asterisk is placed. The court will not allow a party to suffer by the omissions or mistake, of a clerk, attorney, or officer of the court, where a substantial right is involved. Neele v.

Berryhill. Clark v. Berryhill. Gibbs v. Berryhill, 4 Pr. R., 16. An exception to this rule is Manning v. Guyon, 1 Code Rep., 43.

Where two written statements, duly verified, were filed by an attorney with the clerk of the county, for the purpose of having judgments entered by confession, (against the same defendant) without action. And the clerk entered in the judgment book, judgments of the supreme court for the respective amounts confessed, with costs; but omitted to endorse the same upon the statements as directed by this section (section 337 in code of 1848). On a subsequent day another written statement against the same defendant, by a different attorney, was filed by the same clerk, and judgment by confession thereon was perfected regularly in all respects, pursuant to the code aforesaid the last mentioned attorney knowing of the omissions in the two first causes. On a day subsequent to the entry of this last judgment, the attorney in the two first causes consented that the clerk re-enter the two first named judgments by making the proper endorsements, &c., to perfect the same regularly, which was done, making them subsequent in entry and lien to the judgment first regularly entered. On a motion on behalf of the plaintiffs in the two causes first mentioned for an order requiring the clerk to endorse on the statements as of the time they were originally filed, and that the judgments be entered in the judgment book and docketed as of the same day, the order was granted and the re-entry va cated. 4 Pr. R., 16.

CHAPTER IV.

Offers of the defendant to compromise the whole or a part of the action.*

SECTION 385. Defendant may serve offer to compromise and the proceedings thereon.

386. Defendant may offer to liquidate damages conditionally.

387. Effect of acceptance or refusal of offer.

385. [338.] (Amended, 1851.) Offer of Compromise.The defendant may at any time before the trial or verdict, serve upon the plaintiff an offer in writing to allow judgment to be taken against him, for the sum or property, or to the effect therein specified, with costs. If the plaintiff accept 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.

This section was substituted for s. 338 of the code of 1848, with which prior to its amendment it was identical. The material amendment to this section is the striking out at the commencement the words "In an action arising on contract." It is

It seems that the code has not repealed the provisions of the revised statutes relative to a tender after suit brought. (2 R. S., 553, ss. 20, 21, 22.) See note to section 322 of this code.

presumed that an offer may now be made in every action. Upon section 338 of the code 1848, it was held that an offer in writing to allow judgment to be taken against the defendant signed, by his attorney, is equivalent to an offer signed by the defendant. Sterne v. Bentley, 1 Code Rep., 109; 3 Pr. R., 331.

We may notice that the section before amendment was that the defendant might serve "an offer in writing," the amended section omits the words "in writing," and only uses the word "offer." As, however, the offer is to be served, we presume it must still be in writing. The term costs in this section it is said, embraces merely the ordinary costs in the suit, and not the extra allowance spoken of in sections 308 and 309, so that although a defendant against whom a judgment is obtained for a less amount than he offered in writing, to allow judgment to be taken against him, is entitled to costs from the time of the offer, yet he is not entitled to an extra allowance under sections 308 and 309. McLees v. Avery, 3 Code Rep., 104 ; 4 Pr. R., 441.

When A. B. & C. were sued jointly as joint debtors, and A. was the only defendant served, and he made an offer under section 385, for plaintiff to take judgment for $410, and costs, the plaintiff accepted the offer, and entered judgment against "all" the defendants as joint debtors. It was held that the plaintiff was regular in his proceedings, and that the code has not in that respect superseded the revised statutes. That the "offer" is a substitute for the cognovit, and that one of several joint debtors could in that manner confess judgment against all the defendants. Lippman v. Joelson, 1 Code Rep. N. S., 161, n.

In an action against two to recover a joint demand, an offer by one of the defendants, the other defendant not making any defence, will subject the plaintiff to costs if he proceed and fail to recover more than the amount mentioned in the order. La Forge v. Chilson, 1 Code Rep. N. S., 159.

Where a defendant makes an offer under this section, which the plaintiff rejects, and the answer of the defendant admits that there is due to the plaintiff the amount so offered, the court will not order the defendant to satisfy such amount under section 244. Smith v. Olssen, 4 Sand. S. C. R., 711.

§ 386. [339]. Defendant may offer to liquidate damages conditionally. 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.

$387. [340.] Effect of acceptance or refusal of offer.--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 expense shall be ascertained at the trial.

CHAPTER V.

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.

§ 388. [341-342.] (Amended 1849.) Existing suits. Inspection and copy of books, papers, and documents, how obtained.— 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.* 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

This section is substituted for sections 341 and 342 in the code of 1848. asterisk divides this section into parts corresponding to the division in the code of 1848.

The section 342 of the code of 1848, used only the word "papers," and not "books, papers, and documents," and it was held that that section applied only to "papers" and not to "books," and that to obtain an inspection, &c., of " books" it was necessary to resort to a petition under the revised statutes. (2 R. S., 199, 200.) Sill, J., said, "The only effect of this section is to sanction by legislative enactment part of rule 29 of the supreme court, (supreme court rules of 1847). It applies only to "papers," not to "books," and omits the requirement that the copy should be verified, which the courts deemed proper, to guard against imposition and fraud by serving false copies.

"Formerly a paper might be ordered to be deposited, thus enabling the party to

nspect or take a copy of it. The revised statutes authorized the order when the court or officer deemed it proper, and the new law refers it to the discretion of the court or justice. A proper exercise of this discretion would require the applicant to show substantially what is required by the 28th rule (rules of supreme court 1847). This section, 342 (now 388), omits to direct the particular manner in which the inspection and copy are to be obtained, leaving it to be prescribed by the court. In my opinion, the standing rules of the court regulate alike the practice in this section and the statute in force when the code took effect, or in other words, this section has not in any manner changed the practice or given any new additional remedy.

"The former practice of the court is retained by sections 389 (now 469), 390 (now 471)." Follett v. Weed, 1 Code Rep., 65.

This section does not repeal the provision of the revised statutes on the same subject, and the two systems may well stand together. If a party come by petition under the revised statutes, and ask for a discovery, he has a right to it. It is a different proceeding from that under the code. The court exercises different powers in respect of it, having a discretion as to the manner of ordering it, and there being provided a different mode of enforcing the discovery. There is no incongruity between the two systems, and they may stand together. Ib.

The case of Follett v. Weed, supra, was a decision upon the code of 1848, but "the slight amendment of section 388, has not rendered that decision inapplicable to the present practice." Per Sill, J., in Dole v. Fellows, 1 Code Rep. N. S., 146.

The new rules of the supreme court show the court did not deem the code to have superseded the old system. That court has made rules which carry out the latter, in respect of sworn copies and the like. The application before us comes under the old system. There is not enough in the papers to show why or how it is necessary to have the discovery asked, in order to prepare the answer. This should be shown as well as the nature of the documents. Per Sandford J., in Stanton v. Del. Mut. Ins. Co., 2 Sand. S. C. R., 662, and see Moore v. Pentz, ib., 664; Follett v. Weed, 1 Code Rep., 65; Brown v. Babcock, ib., 66; Powers v. Elmendorf, 2 ib., 44.

The motion for discovery of books, &c., must be founded on a petition. Dole v. Fellows, 1 Code Rep. N. S, 146. Supreme court rule 8.

Where a petition by the defendant asked a discovery from the plaintiff of certain deeds and other instruments in writing, to enable the defendant to answer the complaint; and no fact was stated showing how the discovery was necessary, except that he expected to be able to prove that the note, &c., sued upon, were paid, it was held, that such an application did not come within the provisions of section 388 of the code. It must be governed by the revised statutes (2 R. S., 199, s. 22), and the former chancery practice, which prescribes the requisites of such a petition, and that the defendant must show how or why it is necessary to have the discovery, in order to prepare his answer. In other words, he must set forth the necessary facts in his petition. Gelston v. Marshall, 6 Pr. R., 398.

A referee, to whom all the issues in the action have been referred, has not authority to order the production of books by either party, where there is no provision to that effect in the order of reference. Frazer v. Phelps, 3 Sand. S. C. R., 741; 1 Code Rep. N. S., 214.

The power to order the production of books, &c., under this section, is limited to the court or a justice thereof, whether exercised under the code or the revised statutes. Ib.

The order may be made at any stage of the action. Miller v. Mather, 5 Pr. R, 160. But it is not granted as a matter of course. Hooker v. Mathews, 1 Code Rep., 108. Roome v. Webb, 3 Pr. R., 327. It has been made after a cause was

partly heard. Mechanics' Bank v. James, 2 Code, Rep., 46. The discovery is not confined to the cases mentioned in the 8th rule. Exchange Bank v. Monteith, ib., 148. The facts requisite for the making the order may be shown by the affidavit of one not a party to the suit. Ib. To excuse himself from making the discovery ordered, the party must swear positively the papers are not in his possession or under his control. Southart v. Dwight, 2 Code Rep., 83. The order will be granted to enable a defendant to make his defence. Powers v. Elmendorf, 2 Code Rep., 44.

See supreme court rules, 8, 9, 10, 11, and note to section 389.