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vice in that action, when duly brought thereon. The proper course of the creditor in such cases, " is to petition the court for relief, and if his claim is undisputed, the committee will be ordered to pay it ; if disputed, so as to bring its justice seriously in question, a reference will be ordered, or the plaintiff will be permitted to bring an action to determine its justice and extent." Soverhill v. Dickson, 5 How. 109. This is also a proceeding in which the forms of the old practice must be followed.
A receiver appointed by the court cannot, in general, bring or defend a suit, without its consent. Before doing the former, he must apply for leave, in the manner before indicated, with respect to the bringing of suits by committees, under similar circumstances. If he omit to do so, and fail in the suit, he will be personally liable for the costs.-Phelps v. Whitney, 3 C. R. 157. This is, however, not the case as regards receivers of a debtor's estate, appointed in the course of supplemental proceedings, after judgment.—Secs. 298 and 299 of the Code, and rule 81 of the supreme cout. The authority of a receiver of this class to sue is general, and extends to all cases in which he is not restricted by the special order of the court. The only point in which his discretion in this respect is limited, is with respect to actions brought against insolvents, from whom he cannot obtain his costs. In these cases he will not be allowed them, unless, before bringing such action, he obtain the authority of the court, or the consent of all persons interested.See rule 81.
The circumstances under which a party laboring under dis. ability must appear by a next friend, have been adverted to in a former chapter, under the head of parties. The selection must of course be made, in those cases, before process is issued, and the party selected must be of ability to answer for the costs of the suit.
In addition to legal disabilities, a party may labor under inability to sue with effect, occasioned by poverty. For this case, provision is expressly made by title I. of chap. VIII. part III. of the Revised Statutes, 2 R. S. 444, 445. A party in this position must apply to the court on petition, verified by affi. davit in the form there expressly prescribed, according to the former practice in such cases. If the court be satisfied with the facts alleged, counsel and attorneys will be assigned to him, and he will be permitted to prosecute his cause without being liable to the payment of any fees, or of the costs of the suit. The privilege thus granted, is, however, revocable for miscon. duct; and an order of this nature, though generally a prelimi. nary to suit brought, is, it would seem from sec. 2 of the title before cited, obtainable in a suit then actually existing.
Under sec. 430 of the Code, the leave of the court is also made a pre-requisite to actions brought by the attorney-general, for vacating the charters, or annulling the existence of corporations other than municipal, under the peculiar circumstances there specified.
OF PROCEEDINGS FOR SETTLEMENT OF A CONTROVERSY,
WITHOUT ACTION BROUGHT.
The modes of accomplishing this object as pointed out by the Code are twofold,-- 1st. The bringing such controversy to a final decision upon a case, without going through the forms of an action ; and 2d. The confession of judgment in respect thereof; which subjects will be successively treated. Of a somewhat analogous nature to the former, is the reference of a claim to arbitration under the old practice, but which mode of proceeding is in nowise affected by the Code.
The submission of a controversy without action is provided for by secs. 372 to 374 of the Code. The parties are thereby empowered to agree upon a case containing the facts upon which such controversy depends, and to present a submission of the same to any court which would have jurisdiction of an action when brought; it being also made to appear by affidavit that the controversy is real, and the proceeding in good faith, to determine the rights in question. The case having been drawn, and the submission signed by the parties, the matter is then to be heard at the general term, on printed papers, see rule 32 of the supreme court. From the moment in fact that the case and submission have been prepared and signed, the matter takes, in all respects, the shape of an appeal to the general term, from the decision of a single judge upon a case. The papers must be printed and served, points prepared, and the whole case conducted precisely as prescribed in relation to the latter. See hereafter under the head of appeals.
On the decision of the court on the matter thus brought before it being pronounced, judgment is to be entered thereon exactly as in other cases, but without costs for any proceedings prior to notice of trial. The judgment roll is to consist of the case, the submission, and a copy of the judgment, sec. 373. When entered, such judgment may, under sec. 374, be enforced in the same manner, and subject to the same right of appeal, as if it had been entered in a regular action at that particular stage, and the appeal therefrom lies direct to the court of appeals, without the intervention of any intermediate tribunal.
These provisions, in effect, enable parties wishing an amicable settlement of a controversy between them, to place their case precisely on the same footing as if, after having gone through all the regular stages, it had been passed upon by a single judge, and an appeal taken from that decision to the general term : but without the delay and expense consequent on the ordinary proceedings for that purpose.
No case appears as yet to have arisen with reference to these provisions; at least, no decisions on the subject appear in any of the reports. They are, in fact, of a nature little likely to give rise to controversy as to their form, the whole proceeding being one of an amicable nature, and only adoptable on express agreement of the parties.
The other mode of settlement above noticed is the confession of a judgment without action. By this proceeding the full benefits of an action are secured to the intended plaintiff, without the corresponding expense to the defendant. It is, therefore, a measure of frequent occurrence, where the latter possesses no real defence, and has no wish to evade his responsibility; or where an arrangement is made between the parties, for security in respect of a present, or indemnity against a future indebtedness. It is equivalent to the cognovit or warrant of attorney, under the old practice, and in the English courts. In the latter, an analogous proceeding is of frequent occurrence, in the shape of an order obtained by the defendant, for the plaintiff to show cause why, on a stipulation that he is to be at liberty to enter up judgment at a fixed date, in default of pay. ment of debt and costs at that period, all interim proceedings should not be stayed.
The main part of the provisions of the Code on this subject were contained in the measures of 1848 and 1849; but the alterations on the amendment of 1851 are important, the larger portion of sec. 384 being new.
This proceeding may be taken for the purpose of securing to the confessee any amount, either due or to become due, or to indemnify him against any contingent liability; and provision may be made for the entry of the judgment, either immediately, or at any future specified date. The mode of proceeding is specified by sec, 383, as follows:
$ 383. 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
In the Appendix, a form is given, adapted to each of the above contingencies. Where the security is for the purposes of indemnity against future liabilities, the statements of fact must necessarily vary according to the peculiar circumstances. The great thing to be looked to is the making a concise and clear exposition of the actual facts, in much the same manner, and governed by the same general principles, as are subse. quently laid down in reference to averments of fact in pleading.
By sec. 384, the mode of entering judgment on such a statement, and of enforcing such judgment, when entered, are prescribed in terms. This branch of the subject will hereafter be considered, under the heads of Judgment and Execution ; the former differing very slightly, and the latter in no respect, except one, from the usual practice in such cases. The peculiar provision alluded to is of recent insertion, and is to the effect, that, where a confession of judgment of this nature shall have issued for the payment of a sum by instalments, execution may from time to time be issued for the instalments then actually due, without prejudice to the renewal of the same proceeding, for the recovery of any subsequent payments.-Sec. 384. (See hereafter, under the head of Execution.)
It will be remembered that, in cases where the amount consessed does not exceed $250, justices of the peace have the power to enter judgment on confession, under art. VIJI. title IV. c. II. part III. of the Revised Statutes; the defendant in such cases being, however, obliged to appear before the justice in person. (See former chapter as to proceedings in these courts.)
A confession of judgment, under the Code, cannot be made in an action arising out of tort. The proceeding is only authorized in respect of money due or to become due, or for security against a contingent liability. These are the only cases affected by the Code.—Boutel v. Owens, 2 Sandf. s. C. R. 655; 2 C. R. 40.
It would seem, by the same case, as if these provisions were not applicable to the case of confession of judgment, in a suit already commenced, though this is doubtful. It is, however, quite clear, that where such confession takes place whilst the party is actually in custody, and without the presence of an attorney or counsel to advise him in the matter, the judgment entered on it will be void.-Same case. (See also Wilder v. Baumstack, 3. How. 81. This is in accordance with the rigid rules and practice of the English courts, under similar circumstances.
By sec. 384 the judgment to be entered on a confession of this nature must be endorsed upon the statement, and also entered in the judgment book. It will be most essential that these rules be literally complied with on all occasions.
These provisions, however imperative, are nevertheless directory in their nature, and therefore the court will not allow an innocent party to suffer from a mistake or omission of one of its officers in this respect; Neele v. Berryhill, 4 How. 16.
The same principle, as to these provisions being merely directory, is also fully sustained in Park v. Church, 5 How. 381; 1 C. R. (N.S.) 47. It was there held that, where the defendants had confessed judgment " for a certain amount, but omitted in direct