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party shall be such sum as the appellate court may award, not exceeding ten dollars.

If the appeal be dimissed for want of prosecution, as provided by section 364, no costs shall be allowed to either party.

The amendment of 1851 to this section was the allowance of two dollars instead of one dollar to a justice of the peace for his return.

Where an appeal from a judgment rendered by a justice of the peace, is heard by the supreme court, because of the incompetency of the county judge to hear the appeal, the successful party will recover the same costs as if the appeal had been decided by the county judge. He is not in such case entitled to tax the same amount of costs as on an appeal from a judgment of a county court. Taylor v. Seeley, 3 Code Rep., 84.

On bringing an appeal from a justice's court, to the county court, the payment of the fee to the justice for making the return to the appeal, must be made at the time of the service of the notice of appeal. It is ground for dismissing the appeal, where the return is not made in consequence of the non-payment of such fee. And the justice cannot be compelled to make the return unless the fee be paid at the time notice of appeal is served. Van Heusen v. Kirkpatrick, 5 Pr. R., 422; 1 Code Rep. N. S., 74.

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TITLE XII.

Of the miscellaneous proceedings, in civil actions, and general

CHAPTER. I.

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provisions.

Submitting a controversy without action.

Proceedings against joint debtors, heirs, legatees, devisees, and tenants holding under a judgment debtor.

III. Confession of judgment without action.

IV. Offers of the defendant, to compromise the whole or a part of the

action.

V. Admission or inspection of writings.

VI. Examination of parties.

VII. Examination of witnesses.

VIII. Motions and orders.

IX. Entitling affidavits.

X. Computation of time.

XI. Notices, and filing and service of papers.

XII. Duties of sheriffs and coroners.

XIII. Accountability of guardians.

XIV. Powers of referees.

XV. Miscellaneous provisions.

CHAPTER I.

Submitting a controversy, without action.

SECTION 372. Controversy how submitted without action.

373. Judgment on, as in other cases, but without costs.

274. Judgment may be enforced, or appealed from, as in an action.

$372. [325.] Controversy, how submitted without action.Parties to a question of difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same, to any court which would have jurisdiction if an action had been brought. But it must appear by affidavit that the controversy is real, and the proceeding in good faith, to determine the rights of the parties. The court shall thereupon hear and determine the case, at a general term, and render judgment thereon, as if an action were depending.

It is a general rule that courts will not entertain a fictitious case, to test a right to a particular thing. Port Gibson B'k v. Dickson, 4 Sme. & M., 689.

The plaintiff, [or rather the nominal plaintiff ], must furnish the necessary papers for argument, duly printed as in cases of appeal." Supreme court rule 29.

$$ 373-376.] PROCEEDINGS AGAINST JOINT DEBTORS, ETC.

387

373. [326.] Judgment on, as in other cases, but without costs. Judgment shall be entered in the judgment book, as in other cases, but without costs, for any proceeding prior to notice of trial. The case, the submission, and a copy of the judg ment, shall constitute the judgment roll.

§ 374. [327.] Judgment may be enforced or appealed from, as in an action.-The judgment may be enforced in the same manner, as if it had been rendered in an action, and shall be subject to appeal in like manner.

CHAPTER II.

Proceedings against joint debtors, heirs, devisees, legatees, and tenants holding under a judgment debtor.

SECTION 375. Parties not summoned in action on joint contract, may be summoned after judgment.

376. If judgment debtor die, his representatives may be summoned.

377. Form of summons.

378. To be accompanied by affidavit of amount due.

379. Party summoned may answer and defend.

380. Subsequent pleadings and proceedings same as in an action.
381. Answer and reply to be verified as in an action.

$375. [328.] (Amended 1849.) Parties not summoned in action on joint contract, may be summoned after judgment.When a judgment shall be recovered against one or more of several persons, jointly indebted upon a contract, by proceeding as provided in section 136, 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.

In a proceeding under this section does the cause of action or right to proceed arise upon the judgment or the original demand? Oakley v. Aspinwall, 4 Coms., 513.

§ 376. [329.] (Amended 1849.) If judgment debtor die, his representatives may be summoned.-In case of the death of a judgment debtor after judgment, the heirs, devisees, or legatees of the judgment debtor, or the tenants of real property owned by him and affected by the judgment, may, after the

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PROCEEDINGS AGAINST JOINT DEBTORS, ETC. [§§ 377-380.

expiration of three years from the time of granting letters testamentary, or of administration upon the estate of the testator or intestate, be summoned to show cause why the judgment should not be enforced, against the estate of the judgment debtor in their hands respectively, and the personal representatives of a deceased judgment debtor, may be so summoned, at any time within one year after their appointment.

§ 377. [330.] Form of summons.-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 summoned to show cause within twenty days after the service of the summons; and shall be served in like manner as the original summons.

§ 378. [331.] To be accompanied by affidavit of amount due. The summons shall be accompanied by an affidavit of the person subscribing it, that the judgment has not been satisfied, to his knowledge or information and belief, and shall specify the amount due thereon.

$379. [332.] (Amended 1849.) Party summoned may answer and defend. 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 375 he may make the same defence which he might have originally made to the action, except the statute of limitations.

See Person v. Valentine, 13 Sme. & M., 551. The defendant cannot set up any defence which he might have interposed to the original action, or which existed be fore the judgment; and this rule applies whether the judgment was obtained by confession or default or upon plea. McFarland v. Irwin, 8 Johns. R., 78.

$380. [333.] (Amended 1849.) Subsequent pleadings and proceedings same as in an action.-The party issuing the summons may demur or reply to the answer, and the party summoned may demur to the reply; and the issues may be tried, and judgment may be given in the same manner as in an action, and enforced by execution, or the application of the property charged to the payment of the judgment, may be compelled by attachment, if necessary.

§ 381. [334.] (Amended 1849.) Answer and reply to be verified as in an action.-The answer and reply shall be verified in the like cases and manner, and be subject to the same rules, as the answer and reply in an action.

SECTION 382.

CHAPTER III.

Confession of Judgment, without Action.

Judgment may be confessed for debt due or contingent liability. 383. Statement in writing and form thereof.

384. Filing same and entering judgment.

§ 382. [335.] Judgment may be confessed, for debt due, or contingent liability.-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.

It has been held that a confession of judgment out of court in an action of tort is not within or authorized by the code. Boutette v. Owen, 2 Code Rep., 40; 2 Sand. S. C. R., 655.

A confession of judgment by a defendant in custody at the suit of the person in whose favor the judgment is confessed, made without the presence of counsel or the advice of some attorney named by the defendant, and attending at his request, to inform him of the nature and effect of the confession before he signs it, is void and will be set aside on motion. Ib.

The provision of the revised statutes, forbidding the setting aside a judgment for irregularity after one year (2 R. S., 282, s. 2), does not prevent the setting aside a judgment by confession after that period for the want of a sufficient statement.Manufac. B'k v. St. John, 5 Hill, 497. Manufac. B'k v. Boyd, 3 Denio, 257. But see Park v. Church, 1 Code Rep., N. S., 47.

A judgment by confession in a county court for an amount exceeding the amount for which county courts have jurisdiction is a nullity. Griswold v. Sheldon, 1 Code Rep., N. S., 261. Daniels v. Hinkston, 5 Pr. R., 322.

A mere confession of judgment is not a violation of an injunction restraining the defendant from disposing of or in any manner interfering with his property; but a confession of judgment may be a violation of such an injunction if accompanied by acts of the defendant showing an intent to dispose of his property. Ross v. Clussman, 1 Code Rep. N. S., 91.

The judgment must be on the direction of a judge or report of referees, except where the clerk may enter the same, by section 384. See section 278. See section 53, sub. 8, of this code.

§ 383. [336.] Statement in writing, and form thereof.-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.

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