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. Offer of compromise. CHAPTER IV. OFFER OF THE DEFENDANT TO COMPROMISE THE WHOLE OR A PART OF SEC. 402. Offer of compromise. 403. Defendant may offer to liquidate damages. 404. Effect of acceptance or refusal of offer. SEC. 402. The defendant may, at any time before the trial or verdict, serve upon the plaintiff an offer in writing to allow judg ment 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 If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence; and if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs, but must pay the defendant's costs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 counter claim 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 counter claim 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 entitled him to judgment, or 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 If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence; and if the defendant fail to recover a more favorable judgment, or to establish his counter claim for a greater amount than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. conditionally. SEC. 403. In an action arising on contract, the defendant may, Defendant mal with his answer, serve upon the plaintiff an offer in writing, that date damages 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. Effect of ac ceptance or re SEC. 404. 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 fusal of offer. 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. SEC. 405. Either party may exhibit to the other, or to his attor Inspection and copy of books, ney, at any time before the trial, any paper material to the action, papers, &c., how obtained. 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. CHAPTER VI. covery under EXAMINATION OF PARTIES. SEC. 406. Action for discovery abolished. 407. A party may examine his adversary as a witness. therefor. 409. Party, how compelled to attend. 410. Testimony of party may be rebutted. 411. Effect of refusal to testify. 412. Testimony of a party not responsive to the inquiries may be rebutted by the oath of the party calling him. 413. Persons for whom action is brought or defended may be examined. 414. Examination of co-plaintiff or co-defendant. SEC. 406. No action to obtain discovery under oath, in aid of the Action for dis- prosecution or defence of another action, shall be allowed, nor oath abolished. shall any examination of a party be had, on behalf of the adverse party, except in the manner prescribed by this chapter. SEC. 407. A party to an action may be examined as a witness, A party may at the instance of the adverse party, or of any one of several examine his adversary as a wit- 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. ness. tion also allow SEC. 408. The examination, instead of being had at the trial, as Such examina- provided in the last Section, may be had at any time before the ed before trial: trial, at the option of the party claiming it, before a Judge of the proceedings therefor Court, on a previous notice to the party to be examined, and any other adverse party, of at least five days, unless, for good cause But the party to be examined shown, the Judge order otherwise. Party, how compelled to at SEC. 409. The party to be examined, as in the last Section provided, may be compelled to attend in the same manner as a witness tend. who is to be examined conditionally; and the examination shall be taken and filed by the Judge in like manner, and may be read by either party on the trial. SEC. 410. The examination of the party, thus taken, may be Testimony of party may be rerebutted by adverse testimony. butted. SEC. 411. If a party refuse to attend and testify, as in the last four Sections provided, he may be punished as for a contempt, and his complaint, answer or reply may be stricken out. SEC. 412. A party examined by an adverse party, as in this chapter provided, may be examined on his own behalf, subject to the same rules of examination as other witnesses. But if he testify to any new matter, not responsive to the inquiries put to him by the adverse party, or necessary to explain or qualify his answers thereto, or discharge when his answers would charge himself, such adverse party may offer himself as a witness on his own behalf in respect to such new matter, subject to the same rules of examination as other witnesses, and shall be so received. Effect of refusal to testify. Testimony by sponsive to the be rebutted by inquiries may oath of the party calling him. a party not re Persons for whom action is SEC. 413. A person for whose immediate benefit the action, is prosecuted or defended, though not a party to the action, may be brought or defended may be examined as a witness, in the same manner, and subject to the examined. same rules of examination, as if he were named as a party. 9-398. SEC 414. A party may be examined on behalf of his co-plaintiff, Examination of co-plaintiff or or of a co-defendant, as to any matter in which he is not jointly co-defendant. interested or liable with such co-plaintiff, or co-defendant, and as to which a separate and not joint verdict or judgment can be rendered. And he may be compelled to attend in the same manner as at the instance of an adverse party; but the examination thus taken shall not be used in the behalf of the party examined. And whenever, in the case mentioned in Sections four hundred and seven and four hundred and eight, one of the several plaintiffs or defendants who are joint contractors, or are united in interest, is examined by the adverse party, the other of such plaintiffs or defendants may offer himself as a witness to the same cause or action or defence, and shall be so received. CHAPTER VII. Interest not witness. to exclude 9-398. a Parties to actions and special proceedings on their own be certain cases. 3-425, 512, 6-44, 81. 7-165, 9-279, 398. Wilson v. 11-123. 11-549. EXAMINATION OF WITNESSES. SEC. 414. (a) Interest not to exclude a witness. 415. Parties to actions and special proceedings may be witnesses on their own behalf, except in certain cases SEC. 414. (a) No person offered as a witness shall be excluded by reason of his interest in the event of the action. SEC. 415. A party to an action or special proceeding in any and all Courts, and before any and all officers and persons acting judimay be examin cially, may be examined as a witness on his own behalf, or in beed as witnesses half of any other party, conditionally, on commission and upon half, except in the trial or hearing in the case, in the same manner and subject to the same rules of examination as any other witness: Provided, however, That no party to the action or proceeding, nor any person who has a legal or equitable interest which may be affected by the event of the action or proceeding, nor any person who, preRichey. (Mss.) vious to such examination, has had such an interest, however the same may have been transferred to or come to the party to the action or proceeding, nor any assignor of anything in controversy in the action, shall be examined in regard to any transaction or communication between such witness and a person, at the time of such examination, deceased, insane or lunatic, as a witness against a party then prosecuting or defending the action as executor, administrator, heir-at-law, next-of-kin, assignee, legatee, devisee, or survivor of such deceased person, or as assignee or committee of such insane person or lunatic, when such examination or any judgment or determination in such action or proceeding, can in any manner affect the interest of such witness or the interest previously owned or represented by him. But when such executor, administrator, heir-at-law, next-of-kin, assignee, legatee, devisee, survivor or committee, shall be examined on his own behalf in regard to such transaction or communication, or the testimony of such deceased or insane person or lunatic in regard to such transaction or communication (however the same may have been perpetuated or made competent), shall be given in evidence on the trial or hearing in behalf of such executor, administrator, heir-atlaw, next-of-kin, assignee, legatee, devisee, survivor or committee, |