the judge having jurisdiction thereof may at any time remove the receiver, or direct him to give a new undertaking, with new sureties, with the like condition. But this section does not apply to a case where special provision is made by law for the security to be given by a receiver, nor for increasing the same, nor for removing a receiver.

Code, s. 383.
Note.

For giving bond in surety companies, see ss. 272, 273.

XLII. TRUST FUNDS SUMMARILY PROTECTED.

850. Trust funds ordered paid into court. When it is admitted by the pleading or examination of a party that he has in his possession, or under his control, any money or other thing capable of delivery, which, being the subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the judge may order the same to be deposited in court, or delivered to such party, with or without security, subject to the further direction of the judge.

Code, s. 380; C. C. P., s. 215.

851. Trust funds, etc., ordered seized by sheriff, when. Whenever, in the exercise of his authority, a judge shall have ordered the deposit, delivery or conveyance of money or other property, and the order is disobeyed, the judge, besides punishing the disobedience as for contempt, may make an order requiring the sheriff to take the money or property, and deposit, deliver, or convey it, in conformity with the direction of the judge.

Code, s. 381; C. C. P., s. 215.

852. Defendant ordered to satisfy sum admitted to be due. When the answer of the defendant expressly, or by not denying, admits part of the plaintiff's claim to be just, the judge, on motion, may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a judgment or provisional remedy.

Code, s. 382; C. C. P., s. 215.

XLIII. WASTE.

853. How remediable. Wrongs, remediable by the old action of waste, are subjects of action as other wrongs; and the judgment may be for damages, forfeiture of the estate of the party offending, and eviction from the premises.

Code, s. 624; C. C. P., s. 383.

854. For and against whom lies. In all cases of waste, an action shall lie in the superior court at the instance of him in whom the right is, against all persons committing the same, as well tenant for term of life as tenant for term of years and guardians.

Code, s. 625; R. C., c. 116, s. 1; 52 Hen. III., c. 23; 6 Edw. I., c. 5; 20 Edw. I., st. 2; 11 Hen. VI., c. 5.

855. Tenant in possession of particular estate liable. Where tenant for life or years grants his estate to another, and still continues in the possession of the lands, tenements, or hereditaments, an action shall lie against the said tenant for life or years.

Code, s. 626; R. C., c. 116, s. 2; 11 Hen. VI., c. 5.

856. Action by tenant against cotenant. Where a joint tenant or a tenant in common commits waste, an action shall lie against him at the instance of his cotenant or joint tenant.

Code, s. 627; R. C., c. 116, s. 4; 13 Edw. I., c. 22.

857. Heirs may sue, when. Every heir shall have his action for waste committed on lands, tenements, or hereditaments of his own inheritance, as well in the time of his ancestor as in his own.

Code, s. 628; R. C., c. 116, s. 5; 6 Edw. I., c. 5; 11 Hen. VI., c. 5; 20 Edw. I., st. 2.

858. Judgment for treble damages and possession. In all cases of waste, when judgment shall be against the defendant, the court may give judgment for thrice the amount of the damages assessed by the jury, and also that the plaintiff recover the place wasted, if the said damages shall not be paid on or before a day to be named in the judgment.

Code, s. 629; R. C., c. 116, s. 3; 6 Edw. I., c. 5; 20 Edw. I., st. 2.

859. Effect of compromise. 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. Code, s. 574; 1874-5, c. 178.

860. Tender judgment; effect of refusal to accept. 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 can not be given in evidence; and if the plaintiff fail to obtain a more favorable judgment he can not recover costs, but must pay the defendant's costs from the time of the offer. 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 can not 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 can not recover costs, but must pay the plaintiff's costs from the time of the offer.

Code, s. 573; C. C. P., s. 328.

861. Conditional tender of judgment for damages. 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 defense, the damages be assessed at a specified sum; and if the plaintiff signify his acceptance thereof in writing, ten days before the trial, and on the trial have a verdict, the damages shall be assessed accordingly. Code, s. 575; C. C. P., s. 329.

862. Effect of refusal. If the plaintiff does not accept the offer, he shall prove his damages, as if it had not been made, and shall not be permitted 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 defense in respect to the question of damSuch expense shall be ascertained at the trial.

ages.

Code, s. 576; C. C. P., s. 330.

863. Disclaimer of title to trespass; tender of judgment. In actions of trespass upon real estate, wherein the defendant in his answer shall disclaim to make any title or claim to the lands on which the trespass is by the complaint supposed to be done, and the trespass be by negligence or involuntary, the defendant shall be per

mitted to make a disclaimer, and that the trespass was by negligence or involuntary, and a tender or offer of sufficient amends for such trespass; whereupon, or upon some of them, the plaintiff shall join issue, and if the issue be found for the defendant, or if the plaintiff shall be nonsuited, he shall be barred from the said action and all other suits concerning the same.

Code, s. 577; R. C., c. 31, s. 79; 1715, c. 2, s. 7.

XLV. EXAMINATION OF PARTIES.

864. Action for discovery abolished. No action to obtain discovery under oath, in aid of the prosecution or defense of another action, shall be allowed, nor shall any examination of a party be had, on behalf of the adverse party, except in the manner prescribed by this subchapter.

Code, s. 579; C. C. P., s. 332.

865. Adverse party examined. A party to an action may be examined as a witness at the instance of the adverse party, or of any one of several 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.

Code, s. 580; C. C. P., s. 333.

866. Before trial in his own county. The examination, instead of being had at the trial, as provided in the preceding section, may be had at any time before the trial, at the option of the party claiming it, before a judge, commissioner duly appointed to take depositions, or clerk of the 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 shown, the judge or court shall order otherwise. But the party to be examined shall not be compelled to attend in any county other than that of his residence, or where he may be served with a summons for his attendance.

Code, s. 581; 1893, c. 114; 1899, c. 65; C. C. P., s. 334.

867. Party compelled to attend. The party to be examined, as in the preceding section provided, may be compelled to attend in the same manner as a witness who is to be examined conditionally; and the examination shall be taken and filed by the judge, clerk or commissioner in like manner, and may be read by either party on the trial.

Code, s. 582; 1899, c. 65, s. 2; C. C. P., s. 335.

868. Testimony may be rebutted. The examination of the party thus taken may be rebutted by adverse testimony.

Code, s. 583; C. C. P., s. 336.

869. Refusal to testify; penalty. If a party refuses to attend and testify, as in the four preceding sections provided, he may be punished as for a contempt, and his pleadings may be stricken out. Code, s. 584; C. C. P., s. 337.

870. Testimony of party may be rebutted. A party examined by an adverse party, as in this subchapter 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 enquiries 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. Code, s. 585; C. C. P., s. 338.

871. Real party in interest examined. A person for whose immediate benefit the action is prosecuted or defended, though not a party to the action, may be examined as a witness, in the same manner, and subject to the same rules of examination, as if he were named as a party.

Code, s. 586; C. C. P., s. 339.

872. Examination of co-plaintiff or co-defendant. A party may be examined on behalf of his co-plaintiff or of a co-defendant as to any matter in which he is not jointly 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 behalf of the

party examined. And whenever one of 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 of action or defense, and shall be so received.

Code, s. 587; C. C. P., s. 340.

NOTE. For production of writings, see Evidence, s. 1656 et seq.