TITLE 2. § 730. Where such a bond or undertaking is defective, the court, Amending icer, or body, that would be authorized to receive it, or to entertain defects in proceeding in consequence thereof, if it was perfect, may, on the bonds, etc., pplication of the persons who executed it, amend it accordingly; and it shall thereupon be valid, from the time of its execution. Bab 25 TITLE II. Tender, and other offers and requests to the adverse party. TION 731. Tender after suit. 732. Amount to be paid into court. 733. Effect of sufficient tender. 734. When to be deducted from recovery, etc. 735. Requiring admission of genuineness of paper. 736. Offer to liquidate damages conditionally. 737. Effect of refusal of offer. 738. Defendant's offer to compromise; proceedings thereon. 739. Plaintiff's offer to compromise counterclaim; proceedings thereon. 740. Offer and acceptance, by whom subscribed. 741. Rule if offer made within ten days before trial. may 8731. Where the complaint demands judgment for a sum of money Tender aly; and the action is brought to recover a sum certain, or which after suit. * reduced to certainty by calculation; or to recover damages for a casual or involuntary personal injury, or a like injury to property; the defendant, or his attorney, may, at any time before the trial, tender to the plaintiff, or his attorney, such a sum of money, as he conceives to be sufficient to make amends for the injury, or to pay the plaintiff's lemand; together with the costs of the action, to that time. be paid $732. A tender, made as prescribed in the last section, does not Amount to ail the defendant, unless the money is accepted, or is paid into court, into court. nd notice thereof in writing served upon the plaintiff's attorney before trial, and within ten days after the tender. If the plaintiff takes the amount paid in he accepts the tender. tender. $733. If it appears, upon the trial, that the sum so tendered was Effect of ficient to pay the plaintiff's demand, or to make amends for the sufficient ury, and also to pay the costs of the action, to the time of the tenr, the plaintiff cannot recover costs or interest, from the time of the der, but must pay the defendant's costs from that time. $734. If the plaintiff proceeds in the action, after accepting the when to be tender, the sum accepted must be deducted from the recovery, and deducted judgment rendered for the residue, if any; and if the tender and covery, etc. acceptance do not appear in the pleadings, a memorandum thereof ust be annexed to the judgment-roll. The plaintiff's right to recover sts, and his liability to pay costs to the defendant, are determined the amount of the residue. from re admission $735. The attorney for a party may, at any time before the trial, Requiring hibit to the attorney for the adverse party, a paper, material to the of genuinetion, and request a written admission of its genuineness. If the ad- ness of mission is not given, within four days after the request, and the paper Stricken out. paper. TITLE 2. Offer to liquidate damages ally. condition. Effect of refusal of oxer. Defendant's offer mise; pro thereon. is proved or admitted on the trial, the expenses, incurred by the ps exhibiting it, in order to prove its genuineness, must be ascertained the trial, and paid by the party refusing the admission; unles appears, to the satisfaction of the court, that there was a good rea for the refusal. § 736. In an action to recover damages for breach of a contract, defendant's attorney may, with the answer, serve upon the plainti attorney, a written offer, that, if the defendant fails in his defence, damages may be assessed at a specified sum. If the plaintiff ser notice, that he accepts the offer, with or before the notice of trial, a damages are awarded to him on the trial, they must be assessed acco ingly. §737. If the plaintiff does not accept the offer, he cannot prove upon the trial. But if the damages, awarded to him, do not exc the sum offered, the defendant is entitled to recover the expen necessarily incurred by him in preparing for the trial of the quest of damages. The expenses must be ascertained, and the amo thereof determined, by the judge, or the referee, by or before wh the cause is tried. § 738. The defendant may, before the trial, serve upon the plainti to compro- attorney, a written offer, to allow judgment to be taken against h ceedings for a sum, or property, or to the effect, therein specified, with co If there are two or more defendants, and the action can be severed, a l offer may be made by one or more defendants, against whom a separ judgment may be taken. If the plaintiff, within ten days thereaf serves upon the defendant's attorney, a written notice that he acce the offer, he may file the summons, complaint, and offer, with proof acceptance, and thereupon the clerk must enter judgment according If notice of acceptance is not thus given, the offer cannot be given evidence upon the trial; but, if the plaintiff fails to obtain a m favorable judgment, he cannot recover costs from the time of the off but must pay costs from that time. Plaintiff's offer to compro mise counter-claim; proceed ings there on. Offer and acceptance, by § 739. Where the defendant sets up a counterclaim, to an amon greater than the plaintiff's claim, or sufficient to reduce the plaintif recovery below fifty dollars, the plaintiff may serve, upon the defen ant's attorney, a written offer, to allow judgment to be taken again him, for a specified sum, with costs, or against the defendant for specified sum, and against the plaintiff for costs. If the defenda within ten days thereafter, serves, upon the plaintiff's attorney, not that he accepts the offer, either party may file the summons, complai answer, and offer, or copies thereof and proof of acceptance; thereupon the clerk must enter judgment accordingly. If notice acceptance is not thus given, the offer cannot be given in eviden upon the trial; but, if the recovery is not more favorable to the fendant than that so offered, he will not be entitled to recover co from the time of the offer, but must pay costs from that time. § 740. Unless an offer or an acceptance, made as prescribed in eith of the last four sections, is subscribed by the party making it, whom sub- attorney must subscribe it and annex thereto his affidavit, to the eff that he is duly authorized to make it, in behalf of the party. scribed. 136 |