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Appeal from opinion without judgment rendered.-Where, in a case under this section, an appeal is taken upon the judge's filing an opinion, but without rendering judgment, the case will be remanded at the appellant's costs. Moore v. Hinnant, 87-505.

Cases to which this section does not apply.-Where a sheriff has money in his hands raised under executions in favor of different creditors against the same defendant, and the creditors set up conflicting claims to the money, it is not such a case as may be submitted to a judge, without action under this section by the adverse claimants. Bates v. Lilley, 65-232.

Title to a public office cannot be passed upon by this mode of proceeding. Davis v. Moss, 81-303.

This section does not apply to criminal causes. State v. Alphin, 81-566. Nor to the case of a sheriff asking instructions for the application of moneys. Milliken v. Fox, 84-107.

This section has no application to proceedings before a justice of the peace. Wilmington v. Atkinson, 88-54.

Sec. 568. Judgment roll. C. C. P., s. 316.

Judgment shall be entered in the judgment docket, as in other cases, but without costs for any proceeding prior to trial The case, the submission, and a copy of the judgment, shall constitute the judgment-roll.

Sec. 569. Judgment, how enforced and appealed from. C. C. P., s. 317.

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.

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Sec. 570. Judgment may be confessed for debt due on contingent liability. C. C. P., s. 325.

A judgment by confession may be entered without action, either in or out of term, 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.

Judgments confessed.-The guardian of a lunatic may confess judgment for his ward. McAden v. Hooker, 74-24.

Where a judgment is confessed by one person against himself and entered of record, parol evidence is not admissible to show that it was intended to have been entered against another. Davidson v. Alexander, 84-621.

Corporation.-A corporation, nothing to the contrary appearing, may, by the action of its proper officers, confess judgments as a natural person, if the essential requirements of the statute are complied with. Sharp v. Railroad, 106-308.

Section not suspended. This provision is not repealed or modified by the "act suspending The Code," 1868-'9, ch. 76. Hervey v. Edmunds, 68-243.

Sec. 571. Statement in writing, and form thereof. C. C. P., 8. 326.

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.

Requisites. A judgment confessed by the guardian of one who is non compos mentis, if the statement required by this section is verified by the guardian, in the absence of fraud, is not irregular. McAden v. Hooker, 74-24.

A judgment confessed under this section must contain a concise, verified statement of the facts and transactions out of which the indebtedness arose. A mere statement that the defendant is indebted to the plaintiff in a certain sum arising from the acceptance of a draft," setting out a copy thereof, is not sufficient. Davidson v. Alexander, 84-621.

Where the affidavit of the debtor set out that he was justly indebted to the judgment creditor in a certain amount, but did not embrace the account which was filed, this was not a compliance with the statute, and the judgment was void. Davenport v. Leary, 95-203.

The requirements of this section must be strictly observed. Sharp v. Railroad, 106-308.

Sec. 572. Judgment and execution. C. C. P., s. 327.

The statement may be filed with the clerk of the superior court of the county in which the defendant resides, or, if he does not reside in the state, of some county in which he has property. The clerk shall indorse upon it and enter on his judgment docket a judgment of the court for the amount confessed, with three dollars costs, together with disbursements. The statement and affidavit, with the judgment indorsed, 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 indorsed 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 installment becomes due, execution may in like manner be issued for the collection and enforcement of the same.

CHAPTER THREE.

OFFER OF THE DEFENDANT TO COMPROMISE THE WHOLE OR A PART OF THE ACTION.

SECTION.

573. Offer of compromise.
574. Effect of compromises in gen-
eral.

575. Defendant may offer to liqui-
date damages condition-
ally.

SECTION.

576. Effect of acceptance or refusal of offer,

577. In trespass upon real property, defendant may disclaim title and plead tender in bar.

Sec. 573. Offer of compromise. C. C. P., s. 328.

The defendant at any time before the trial or verdict, may 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; and in case the defendant shall set up a counterclaim in his answer to an amount greater than the plaintiff's claim, or sufficient to reduce the plaintiff's recovery below fifty dollars, then the plaintiff may serve upon the defendant an offer in writing, to allow judgment to be taken against him for the amount specified or to allow said counterclaim to the amount specified, with costs. If the defendant accept the offer, and give notice thereof in writing within ten days, he may enter judgment as above for the amount specified, if the offer entitle him to judgment, or if the amount specified in said offer shall be allowed him in the trial of the action. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence; and if the defendant fail to recover a more favorable judgment, or to establish his counterclaim for a greater amount than is specified in said offer, he cannot recover costs, but must pay the plaintiff's costs from the time of the offer.

Offer must be made by all the defendants.-An offer to compromise a suit under this section must be made by all the defendants, or by their common attorney. Williamson v. Canal Company, 84-629.

In action for damages for conversion. In an action to recover damages for the conversion of personal property, the defendant has no right to force

the plaintiff to accept the property, for the conversion of which he is sued, or pay costs; nor would defendant have such right in an action of claim and delivery, unless the tender of the property is accompanied by a proposal to pay an amount as damages not less than that ultimately assessed by the jury. Stephens v. Koonce, 103–266.

Sec. 574. Effect of compromises in general. 1874-25, c. 178, s. 1.

In all claims, or money demands, of whatever kind, and howsoever due, where an agreement shall have been or shall be made and accepted for a less amount than that demanded or claimed to be due, in satisfaction thereof, the payment of such less amount according to any such agreement in compromise of the whole, shall be a full and complete discharge of the same.

Effect of compromise. -An agreement to take part of a debt in payment of the whole was nudum pactum before the adoption of this section (1874-'5, ch. 178). Fickey v. Merrimon, 79-585; Coppersmith v. Wilson, 104-28.

The acceptance by a judgment creditor of a promissory note upon a third person in satisfaction of the judgment, is a discharge of the judgment, although the note is for a less amount than the judgment. Currie v. Kennedy, 78-91.

The payment and acceptance of a less sum than is actually due, in compromise of the whole debt, is a complete and valid discharge, under this section. And this is so, although the debt compromised was one contracted and reduced to judgment before this section became the law, if the compromise was made after it was enacted. Jones v. Mizell, 104–9; Koonce v. Russell, 103-179; Tiddy v. Harris, 101-589.

Act constitutional.-As, under this section, the payment of a less sum, where a greater is due, is not a discharge, unless voluntarily accepted as a compromise by the creditor, the section is not in conflict with art. 1, 10, constitution United States, in its application to pre-existing contracts. Koonce v. Russell, 103-179.

Conditional compromise. -Where one pays a certain sum upon a contested debt in compromise thereof, in case it shall afterwards be established, a finding of the jury that it never existed, will entitle the payer to a judgment of restitution of the sum paid. Fickey v. Merrimon, 79-585.

Sec. 575. Defendant may offer to liquidate damages conditionally. C. C. P., s. 329.

In an action arising on contract, the defendant may, with his answer, serve upon the plaintiff an offer in writing, that if he fails in his defence, the damages be assessed at a specified sum; and if the plaintiff signify his acceptance

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