Page:United States Statutes at Large Volume 31.djvu/421

FIFTY-SIXTH CONGRESS. sm. 1. cn. vso. iooo. 369 fact, in which case the court may order the entry of judgment to bc delayed until such proof be taken. The court inay hear the proof itself, or make an order of reference, or order that a jury be called to inquire thereof. The defendant shall not be precluded, by reason of his default, from offering roof in mitigation of damages; Third. When the defendjant has answered, and admits the plaintiff?s claim, but sets up a counterclaim amounting to less than the plaintiif’s claim, the plaintiff, on motion, shall have judgment for the excess of his claim over such counterclaim, as for want of answer thereto; Fourth. When in any action the service of the summons appears to have been made by publication, the court may, in its discretion, order . the entry of judgment to be delayed until the plaintiff file with the clerk an undertaking, with one or more sureties, to be approved by the clerk, in an amount equal to the sum for which judgment may be given, upon the condition that the plaintiff will abide by and perform any order of the court requiring restitution to be made to the defendant or his re resentative in case either of them shall afterwards be admitted to d)efend the action. The sureties in the undertaking shall have the qualifications of bail, and justify before the clerk as provided in section one hundred and nine. CHAPTER TWENTY-SEVEN. _0E JUDGMENT BY c0NFEss10N. Sec. Sec. 241. Judgmentbyconfessionwhere action j 244. Confession to be in writing; how plending. _ _ judgment given. _ _ 242. W 0 to make confession. 245. Judgment by confession without 243. When judgment may be given action. against several defendants on the 246. How confession made in such cases. confession of one. 247. Same subject. Execution when judgment for installments. Sec. 241. On the confession of the defendant, with the assent of the feiggyyggrebicgg plaintiff or his attorney, judgment may be given against the defendant pending. in any action, before or after answer, for any amount or relief not exceeding or different from that demanded in the complaint. , Sec. 242. When the action is aglainst a public corporation or a pri- ieslggg to make ¤°¤· vate corporation, the confession s all be made by the person who at ` the time sustains the relation to such cor oration as would authorize the service of a summons u on him. In all other cases the confession shall be made by the defendant in person. . Sec. 243. When the action is upon a contract, and against one or bfhggjlugggjggjgzav ' more defendants jointly liable, judgment may be given on the confes- emirlaoronainrsontxlé sion of one or more defendants against-all the defendants thus jointly °°“f°““‘°“ °f °"°· liable, whether such defendants have been served with the summons or not, to be enforced only against their joint property and against the joint and separate property of the defendant making the confession. Sec. 244. The confession and assent thereto shall be in writing, and wgQ§°?¤i*g{)jv° Pgdiif subscribed by the parties or their attorneys making the same, ’*and mentgiiren. J g acknowledged by each before some officer authorized to take acknowledgments of deeds, but such acknowledgment is not requiredswhen the parties or their attorneys. shall appear in court when the judgment is given, or before the clerk in vacation by whom the judgment is entered. In all cases the confession and assent thereto and the acknowledgment, if any, shall be filed with the clerk. Sec. 245. On the confession of any person capable by this code of fe·T¤<jgm¢¤¢ j¤j‘h¤<>¤£ being made a party defendant to an action, judgment may be given acddn?11 W Ou against such person without action, in term time or vacation, in favor of anyone, either for money due or to become due, or to, secure any voL xxx1—--24