The Law of Evidence in Civil Cases

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Bancroft-Whitney, 1908 - 1368 pàgines
 

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Presumptions of lawConclusive and disputable 12 Presumptions of innocence
12
Same Applications of the presumptionFraud and similar issues
15
SameAs applied to the marriage relation 15 Negligence
16
Effect of the presumption of innocence as to the amount of evidence
18
SameDocuments
20
Presumptions from withholding evidence 20 SameRefusal to produce
21
SameQualifications of the rule
22
SameEffect of the presumption on the burden and degree of proof
23
Presumptions as to knowledge of the
24
Effect of mistake as to matters of law 25 Parties presumed to know the legal effect of their contracts
25
SameMisrepresentations as to
26
Presumption that men know the consequences of their acts
27
SameIn civil cases 29 Presumptions as to malice
28
Presumptions as to regularityGeneral rule 31 Regularity of judicial proceedingsJurisdiction
30
Presumptions not allowed to contradict the record
31
Limitations of the ruleService of publication Ministerial powers 34 Regularity of proceedings subsequent to gaining jurisdiction
33
SameFederal courts
35
SameThe rule as to inferior courts 37 SameCourts of probate
36
Same As to judgments in other states 39 SameCollateral and direct proceedings 40 SameAwards of arbitrators
37
Regularity of official acts 42 Same
38
Presumption of authority from acting in official capacity 44 SameNot restricted to oficial appointments 45 Performance of official duty
40
SameActs of municipal officers
47
Statutory presumptions of this class 48 Presumptions of regularity in unofficial actsIn general
48
Same As to negotiable paper
49
Presumptions that documents have been duly executed
50
DatesWhen presumed correct
50
Presumptions as to the mailing and receipt of letters 53 Same TelegramsWeight of the presumption
52
Presumptions arising from partnership dealings
53
Presumptions of regularity in acts of private corporations
55
SameGeneral scope of the rule
56
Miscellaneous presumptions from the general course of business
57
CHAPTER 3
57
Presumptions as to continuance of the existing state of things
58
Presumptions as to sanity and insanity
59
Presumption of continuance of life 61 Presumptions of death after seven years absence
60
No presumption that death occurred at a particular time
61
When death may be inferred from an absence of less than seven years
62
Presumption of survivorship in common disaster
63
Presumptions of payment from lapse of time
65
Lapse of time not a bar but evidence to raise the presumption
66
Mere lapse of time less than twenty years not enough 68 A less period than twenty years with other circumstances may suf fice
68
The presumptionHow rebutted 70 Presumption of payment from usual modes of businessReceipts
70
Same subjectApplication of payment to debts first
72
Settlement presumed from accepting note
73
Presumption of ownership from possession
74
The presumption of title from the possession of lands 76 Presumptions as to grants and other sources of title
76
The presumption not superseded by statutes of limitation
77
Presumption that trustees have made proper conveyances
78
Nature of the possession required 80 Same Changes in possessionPossession by tenant etc 81 The presumptionHow rebutted
81
SameDisabilitiesNature of estateWhat facts are relevant
82
Presumptions as to the law of sister states
83
Same SubjectForeign
87
Contracts presumed to be legal
88
Presumptions as to marriage
89
Cohabitation and reputation to concur Weight of presumption
90
Presumption of marriage in civil and criminal issues 89 No presumption arising from illicit cohabitation
93
Other presumptions growing out of the marriage relation 91 SameOf coercion by the husband
96
Same subjectNature and limits of the presumption 93 Presumption of legitimacy
98
SameHow rebutted
100
SameConclusive if sexual intercourse between husband and wife is shown 96 Same Relevant facts when sexual intercouse between husband and wife ...
101
The husband or wife not allowed to deny sexual intercourse 98 Presumptions as to infantsCapacity to commit crime Consent to sexual intercourse an...
103
Same subjectTestamentary capacityDomicileNecessaries Torts
105
Presumption as to identity from name
106
Conflicting presumptionsThat of innocence prevails over other presumptions
107
ContinuedPresumption of cence of a party overcomes the presumption of innocence of a stranger
109
InnocenceSanityWeight of conflicting presumptions 104 General rules as to presumptions
111
CHAPTER 4
113
Existence of domestic governments
114
Existence of foreign governmentsFlagsSeals of State Foreign
115
Bank and railway charters 115 Municipal charters
125
Ordinances and other acts of municipal bodies
126
Character and existence of the statute a question for the court
127
Private statutesStatutes of sister states
129
SameExceptions to the rule 120 Federal courtsState statutes
131
The unwritten
132
Executive proclamationsRegulation of bureausOfficial reporte of public officers 123 Customs and modes of business
133
Courts Officers of the courtRecordsTerms
135
Matters of history
137
Facts relating to the currency
138
Geographical features Surveys Plats Distances Modes of Travel PopulationLocal divisions of the state
139
invariable course of natureTimeCourse of Seasons Duration of LifeInstincts
143
Meaning of words and phrases
145
Abbreviations 132 Facts not within the memory of the judge
146
Facts of which the judge has special knowledge 134 Facts of which jurors take judicial notice
148
CHAPTER 5
150
RelevancyIn general
151
The terms admissibility and relevant not synonymous 137 Logical connection between fact offered and fact to be proved
153
SameIllustrations of relevant facts
154
Same continued
156
Acts between strangers or between a party and strangers
157
Facts apparently collateral may become relevantCustomCauso and effect
159
SameKnowledgeIntent 143 SameProof of other crimes than the one in issue
162
Same continued
164
SameSuch evidenceHow limited
165
Collateral facts to show good faithKnowledgeThreats
166
Facts apparently collateral to repel the inference of accident
167
CharacterWhen relevant
168
Qualifications of the ruleLibel and slander
169
SameNature of proofPleadingsRumors
170
CharacterActions for breach of promise of marriage 152 SameSeduction and criminal conversation 153 SameActions for bastardy
173
Character in actions for fraud
174
Same continued
175
SameHomicide
176
CharacterAction for malicious prosecution 158 Proof of good character
177
Proof of financial standingExemplary damages 160 SameCompensatory damages
179
SameFinancial standing of plaintiff
180
Mode of proving inancial standing 163 Relevancy of facts apparently collateralNegligence cases 164 Same continued
184
Same continued
185
Relevancy of disconnected facts to show defective machinery Railroad fires
186
Same continued
187
Facts apparently collateralValue of lands
188
SamePersonal propertyServices
189
Direct proof of intent motives and belief 171 Evidence made relevant by that of adverse party 172 SameRebuttal or explanation of irrelevant testimo...
194
Province of judge and jury
197
Same_Mixed questions of law and factConstruction of writings Statutes
200
175a The court decides questions of lawCriminal cases
203
CHAPTER 6
204
Same continued
215
SameNegligenceSetting of fires
218
Contributory negligence
221
Innkeepers
224
InsanityCivil casesCriminal
225
Burden in probate of willsTestamentary capacity
226
Burden of proof as between persons in a fiduciary relation
228
SameIn respect to wills
230
Burden as to crimesFraud
232
Burden in quo warranto proceedings
234
Burden as to statutes of limitation
235
Burden and weight of proof where crime is in issue in ciyll cases 196 Statutes as to burden of proof
238
The right to begin and reply
239
Same continued
241
CHAPTER 7
243
Primary and secondary evidence
245
Application of the rulePrivate writings
247
The rule does not exclude evidence unless objection is made 203 Qualifications of the rule Independent and collateral facts 204 SameCorporate acts
251
Appointment and acts of public officersWritings not producible
252
Multiplicity of documentsGeneral results
254
Parol proof of admissions concerning writingsEnglish rule
255
SameRule in the United States 209 SameCopies not the best evidenceDuplicates
257
The general rule as applied to telegramsMode of proof
258
Communications by telephone
261
Proof of lost instruments
262
SameDiligence necessary before secondary evidence is allowed 214 SameFurther illustrations 215 Importance of documents as affecting diligenceTi...
268
Mode of proving lossHearsay admissionsAffidavit
269
Documents beyond the jurisdiction of the courtDestruction of documents
270
Effect of notice to produce
272
Object of notice to produce
273
Requisites of notice
275
Notice to produceOn whom served
276
Effect of nonproduction
277
When notice to produce is not necessary
278
Same continued
279
DuplicatesRecorded deeds
281
Effect of the production of papers upon notice
282
Proof of the contents of lost documents
283
Degrees of secondary evidence
284
Same Cases illustrating the American rule
285
SameParol evidence not allowed when the law requires copies Original always admissible
286
Crossexamination of witnesses as to writings
287
CHAPTER 8
289
Same continued
294
CHAPTER 9
297
Admissions ConfessionsDeclarations of a party in his own
299
Admissions by real and nominal parties
301
Admissions may be made by those not parties if identified in in terest
302
Admissions by those in privity of interestGrantor and grantee 240 Same continued
303
Same Relaxation of the rule in the United States
304
Declarations as to particular facts concerning private boundaries
305
SameLimitations upon the rule 242 Admissions of ancestor against heir
306
Admissions Landlord and tenant
307
Admissions by former owners of personal property 245 SameReal and personal property
309
SameStrict rule in some jurisdictions 247 SameDeclarations of former owners of choses in action
311
Declarations of persons having a joint interestPartners
312
SameStatutes of limitation as affecting admissions of partners 250 Admissions after dissolution of partnership
315
Partnership to be proved before admissions are received 252 Admissions by joint contractors not partners
316
Declarations by persons having a mere community of interest
317
Declaration by wrongdoersConspiracy 255 Declarations of agents
321
Same Effect of such declarations
322
Admissions by attorneys
323
SameCasual statementsInformal admissions
325
SameDifferent actions or trials
326
Admissions of husband and wife
327
SamePower to make admissionsHow inferred
328
SameIn actions for divorce 263 Admissions by persons referred
330
Effect of consenting to pay on condition afidavit is made 265 Admissions by interpreters
332
Declarations of persons acting in representative capacity 267 Admissions by public corporations
333
Admissions by private corporations
334
Written admissionsLetters
335
Other writings Corporate recorde
336
SamePartnership books
337
Admissions in pleadings
338
Same continued
340
Admissions in pleadingsWhen conclusive
341
Estoppel by conduct
342
SameCorporations CopartnersHusband and wife 277 Same When admissions are in good faith and by mistake
345
SanieErection of improvementsBoundary lines
346
SameThe act must be calculated to mislead and must actually mislead
347
Who may claim benefit of estoppel 281 Estoppel by deed
348
SameTitle subsequently acquiredMutuality and privity
350
Qualifications as to mere general recitalsOther qualifications of general rule
351
As between landlord and tenant
353
As between others holding subordinate title Bailees
355
Acceptance of bills of exchange
356
Admissions implied from conduct 288 SameRepairing defective machinery or highways 289 Admissions may be implied from silence
360
SameNo admission from silence at judicial proceeding 291 Offers of compromise
362
Effect of paying money into court
365
The whole statement or admission to be received
366
SameWritten admissions
369
Weight of admissions 296 Same continued
370
CHAPTER 10
373
DefinitionHearsay evidenceReasons for its exclusion
374
Hearsay may relate to what is done or written as well as to what is spoken
376
Hearsay may include things stated under oath or against interest
377
Statements apparently hearsay may be original evidence
378
Same meaning of the ruleLis mota
390
Declarations as to pedigree Reasons for the exception 313 SameDeclarants relationshipHow provedParticular facts
394
Are the declarations limited to cases where pedigree is the direct subject of the suit
396
Acts and conduct of relatives admissible as well as declarations Written declarations
397
SameFamily recognition of writings and records
398
Weight of such testimony
399
Declarations only admissible after death of the declarant
400
Entries in the course of business by deceased persons 320 SamePrinciple extended to declarations by persons still living 321 Recollection of the fact ...
403
Entries by a party himself
404
Declarations of deceased persons against interestIn eneral
405
SameThe declaration must be against pecuniary or pruprietars interest
406
Sufficient if the entries are prima facie against interest 326 SameEvidence of collateral facts
408
Rule when declaration is made by an agent 328 Declarant need not have actual knowledge of the transaction
409
Such declarations inadmissible to prove contracts 330 General rules on the subject
410
Dying declarations
411
Limited to cases of homicide and when made ir expectation of impending death
412
Declarant must have been competent to testify
414
Declarations must be confined to the homicide
415
Form of the declarationGeneral rules
417
Evidence of witnesses given in former action or on former trial
418
Exact identity of the parties not necessary
419
Parties should be substantially the same or in privity 339 Form of proceedings may be different
420
The opportunity of crossexamination on the former trial 341 Death of the former witnessRelaxation of the rule
422
SameAbsence from stateOther disabilityCriminal cases
423
Mode of proving former testimonyRefreshing memory
425
Res gestae Meaning of the termIllustrations
429
Mere narrations not admissible
431
Cases in which the rule is relaxed
432
Time through which res gestae may extend
433
The statements or acts must be part of a transaction 349 Declarations as to bodily feelings
435
Declarations showing motive or intent
438
Declarations by possessor of personal property
439
Same Possession must be shown
442
Declarations as to boundary lines
443
Declarations of agents
444
Declarations by agents of corporations
446
General rule
448
CHAPTER 12
449
SameSpeed of railroad trains
454
SarneValues 364 SameSanity
456
SameAs to sanity in will cases
457
SameIn generalConclusion
458
Expert testimonyGround of admissio 368 SameProof of qualifications of experts
459
SameA preliminary question for the court
462
Mode of examinationHypothetical questions 371 Hypothetical questions to be based upon proof
463
The expert not to decide questions of fact
465
Same continued
467
Opinions based upon testimony heard or read by the expert
470
Opinions based on personal knowledge
471
Opinions based on hearsayConclusions of law etc 377 Form of hypothetical questions
472
Physicians and surgeons
473
SameTestimony of physicians and others as to poisons
476
Mechanics and machinists as experts
477
Expert testimony as to railroads and their management 382 Experts in agriculture
479
Illustrations of expert testimony by surveyors and engineers
482
Opinions of nautical men 386 Miscellaneous illustrations
484
Expert testimony as to values
485
Opinions as to amount of damages
488
Crossexamination of expertsLatitude allowed
490
Infirmity of expert testimony
491
Same continued
492
Expert testimonyWhen valuable
493
CHAPTER 13
495
SameThe ancient practice 395 Inspection other than by the court or jury
496
Inspection of persons in personal injury cases 397 Same continued
499
Inspection by the juryPersonal injury cases
500
Inspection of articles by jury
501
Inspection of person and articles in criminal cases
503
Proof of laws of sister statesStatutes
504
Inspection as proof of resemblanceRaceAge
505
Effect of nonproduction of real evidence
506
Experiments and tests in the presence of the jury
508
ViewThe former practice
509
Statutes regulating view
510
View discretionary
511
When view may be granted
512
Is the view evidence in the case?
513
Same continued
514
Experiments out of court
515
411 ModelsDiagramsPhotographs
516
CHAPTER 14
518
As to the conveyance of interests in land
519
The statute as affecting leases
520
Proof of surrender of interests in land
521
Surrender by operation of
522
Cancellation of instruments creating interests in land
523
TrustsHow provedNeed not be created by writing
524
The trust to be proved by writing
525
Exception as to resulting trusts
526
Same continued
527
Same Object of the statute
529
Proof of trusts between those holding fiduciary relations
530
WillsProcuring devise by fraud
531
Proof of guaranty
532
Sale of goods
533
What the memorandum is to contain
535
CHAPTER 15
545
Illegality of contract may be shownIncapacity
548
As to mistakes of factReformation of contracts
550
Mistakes as to dates
551
Proof of independent or collateral contracts
552
Parol evidence when the writing is inoomplete
553
Sales of personal property
554
Parol proof of subsequent agreement
557
SameAs to specialties
558
Subsequent agreement as to contracts within the statute of frauds 445 SameTendency of decisions in the United States
560
To show that instruments apparently absolute are only securities
561
SameReal intention of the parties to be ascertained
562
Not limited to deeds and mortgages
563
Rule as to parol evidence not applicable to strangers to the instro ment
564
Parol evidence to identify the subject matter
565
SameUse of propertyIdentifying parties
567
SameFurther illustrationsGeneral rule 453 Proof of surrounding facts
570
port
571
Proof of meaning of words
572
SameIntentionMeaning of words and phrases
574
Usages of trade
576
SamePrincipal and agent 459 Proof of usageBills of ladingInsurance
577
Same Contracts for services 461 Proof of customs between landlord and tenantOther contract
578
SameIn cases of fraud
592
Parol proof as to execution and delivery
593
Parol proof of latent ambiguities
595
Parol evidence not allowed in cases of patent ambiguities 474 Patent ambiguityHow ascertainedInaccuracies
598
Parol evidence as to willsIn general
599
WillsParol evidence to identify property
600
WillsEvidence to identify legatee
602
The rule where the description is more applicable to one subject or person than another
604
WillsMeaning of words and terms Proof in case of latent am biguityDeclarations of testator
605
Where there is no latent ambiguity declarations of testator re jected
606
Proof of declarations of testatorTime of making
608
SameTo show mental condition
609
SameDeclarationsHow limited
610
Parol proof of declarations as to revocationLost wills 485 Parol evidence to explain deedsLatent ambiguities
611
Parol evidence inadmissible to prove reservation
615
Parol evidence as to warranties 488 Same continued
616
As to deficiency of land in deeds 490 Parol proof as to acknowledgments
618
Parol evidence to explain receipts
620
Effect of receipt when not explained 493 Warehouse receipts
623
Parol evidence as to bills and notes
624
Qualifications of the general rule as applied to negotiable paper
626
Indorsements on negotiable paper
629
SameQualifications 498 Bills of ladingContractual stipulationsReceipts
631
Parol evidence as to mortgages
633
CHAPTER 16
635
Documentary evidenceDefinitions
636
Proof of statutes of the state
637
Proof of foreign lawsUnwritten
638
Same continued
639
Same continued
642
Same Proof of the unwritten
643
Proof of acts of stateProclamationsLegislative journals 508 Official registersBooks of public officers
645
Proof of facts contained in official registers 510 Registers of marriage birth and death
648
Same continued 512 Ship registers
649
Logbooks as evidence
650
Records of municipal corporations
651
SameHow authenticated and proved
652
Records of private corporationsFor what purposes admitted 517 SameIn actions on stock subscriptions and other actions
653
SameAs admissionsAs account books
655
SameRequisitesCertificates of acknowledgmentDefects in 521 Defective recordsEvidence for some purposes
659
Public documentsProvable by copies Corporate records
660
Copies of recordsDifferent classes
661
Examined and certified copies as evidence 525 Effect of copies as evidenceCannot exclude originalsBy whom certified
662
Proof of execution of documents
664
Proof of attested documentsAttesting witnesses to be called 528 Exceptions to the general ruleAbsence or disability of witnesses 529 Diligence necess...
669
Exception where adverse party claims under the document 531 ExceptionAncient documents
670
Same Ofice bonds etc 533 Best evidence after nonproduction of subscribing witnesses
673
Same continued
674
SameAbsence of subscribing witness etc 536 SameMode of proving execution by subscribing witnesses
676
Statutes affecting proof of documentsRecording acts
677
Nonjudicial recordsProof ofFederal statutes
678
SameDepartment recordsFederal statutes
680
Proof of records of public departmentsCopiesCertificates
681
SameEffect of these statutes
682
Same Certificates
683
Mere certificates not evidence
684
Exceptions to the rule that mere certificates are not evidence
685
Proof of handwritingWriter need not be called
687
One who has seen another write is competent to testify as to his handwriting
688
Knowledge of handwriting may be gained by correspondence 548 Such knowledge may be gained in the course of business
690
Value of the testimonyHow effected by the means of knowledge 550 Use of writing written at the trial for comparison
693
SameConflicting views in the United States 553 Comparison of simulated signaturesProof of identity
696
ExceptionsAllowing comparison of hands
697
Writings used for comparison must be shown to be genuine
698
Proof of handwritingExpert evidence
700
Effect of alteration of instrumentsWhat constitutes alteration 558 Same rule although the change is to the disadvantage of the wrongdoer 559 Immate...
704
Test of the materiality of the alteration
706
Implied consent to alterationsBlanks 562 Unauthorized filling of blanksDeeds
709
Presumption in case of alterationEnglish rule
710
SameConflicting views in the United States
711
Question of alteration is for the jury
713
Fraudulent intentAlteration of negotiable paper 1 1
714
CHAPTER 17
716
Books of account as evidence
717
SameStatutesOf what transactions books are evidence
718
Books should be those of original entry
720
Form of books of account
721
Books are to be those used in the course of business 572 Time of making the entries
723
Suppletory oath
725
Account books not evidence of collateral facts
726
Degree of credit to be given to books of account
727
Defects in books as affecting admissibility
728
Impeachment of books of accountThey must be produced in court
729
Scientific books
730
Use of scientific books in the examination of experts 580 Reading from scientific books in argument to the jury
732
Admissibility of photographs
734
NewspapersWhen admissible
736
Proof and effect of letters
738
Admissibility of facts in histories
739
Effect of judgmentsGeneral rule
740
As to what persons judgments are conclusive
741
Effect of judgments on persons in privity with each other
742
Admissibility of judgment as against strangers 589 Judgments in civil cases no bar in criminal cases
745
Judgments against principals in actions against their suretiew
748
SameOther classes of bonds
750
JudgmentsWhen admissible as against third persons who are liable to make indemnity
751
Judgment must be final
753
Finality of judgmentsMust be on the merits
754
Effect of nonsuit or discontinuance or appeal
755
Conclusive only as to matters in issue
758
As affected by form of action
759
Extrinsic evidence to identify the issue
761
Same continued
762
Proof that issues are the sameBurden
763
Effect of judgment where cause of action is different 603 Effect of judgmentGeneral issue
766
Matters which might have been litigated in a former sult
767
Same continued
770
Judgments in rem as evidence
771
SameJudgments of divorce 608 Same continued
773
Judgments in probate Conclusive effect ofProof of death
774
SameJurisdiction 611 Collateral proof to show want of jurisdiction
776
Contrary viewQualifications of general rule 613 Inferior courtsJurisdiction to appear on record
778
Merits of foreign judgmentsNot open to inquiry
779
SameConflicting views
780
Judgments of sister statesWant of jurisdiction may be shown
782
SameRegularity presumedProof of fraud
784
Domestic judgments not impeachable by parties for fraud
786
JudgmentsHow provedShould be complete
787
Proof of parts of recordVerdict
788
Proof of judgments in courts where rendered 623 Proof of records of courts in the same state
789
Mode of proof of foreign records 625 SameMode of authentication
791
Proof of records of sister statesFederal statutes 627 Proof of judgments in federal courts
794
AuthenticationAttestation by clerk
795
SameCertificate of judge 630 SameSeal
798
Return of officersNot evidence of collateral facts 632 As between parties the return cannot be collaterally attacked 633 SameHow far conclusive upo...
800
CHAPTER 18
803
Depositions not admissible at common
804
Depositions received in chancery practiceTo perpetuate testi monyDe bene esse
805
Depositions under statutesOn commissionDe bene esse
806
The notice Time of giving
809
SameNames of witnesses of the court and officer
810
Service of the notice
811
Mode of taking
812
The certificate
813
Waiver of objections
814
Same ObjectionsWhen made
815
Depositions dedimus potestatem 648 Procedure in obtaining the commission
817
Meaning of the statutory words common usage
818
Control over depositions
819
Several commissioners may actTaking the oath
820
Miscellaneous 653 Compelling attendance and production of papers
821
Depositions in equity trials
823
Evidence to be taken by commissioners masters etc Whether 9 relevant or not DEPOSITIONS IN STATE COURTS 656 Depositions under state statut...
824
Same continued 658 Statutes to be complied with
825
How compliance with the statute is to appear 660 Same continued
827
Notice of takingTime
828
SameNames of witnesses officer
829
Notice On whom served
830
Same Place of taking
831
Mode of takingReducing to writing
832
Interpreters
833
Persons competent to take depositions
834
Comity between states
835
Mođe of taking and returning depositions
836
IrregularitiesAs to names
837
Waiver of objections
839
SameObjections to the authority of the commissioner
840
When objections are to be made
841
Mere general objections
842
Renewal of objectionsWaiver
843
Ohjections to the substanceWhen made
844
Statutory provisions as to objections
845
Depositions not admissible unless cause therefor continues
846
SameModifications of the ruleStatutes 680 Continuance of the causeHow inferred
848
Use in other actions 682 Use of depositions on second trial
850
Issues and parties to be substantially the same
851
Control and use of depositions
853
Use of portions of depositions
854
Suppression of depositions
855
SameRefusal of witness to answer
858
Suppression for noncompliance with statuteIrregularities
859
Suppression of parts of deposition 692 SameMiscellaneous
860
Amendments
861
The certificate 695 The caption
863
Adjournments
864
Presence of party when deposition is taken on commission 698 Retaking depositions
866
Exhibits to depositions
867
Depositions taken in foreign countries
869
Depositions to perpetuate testimony
870
CHAPTER 19
872
Bill of discoveryn General nature of 703 Statutory discovery
874
SamePractice in federal courts
875
Effect of statutes upon former remedy
876
Scope of examination 707 SameExamination under the control of the courte 708 PrivilegeSelfcrimination
880
Inspection of books and papers
881
Inspection of documents in the United States courts
882
Statutory discovery of books and papers in state courts
884
CHAPTER 20
887
COMPETENCY OF WITNESSES 712 Competency of witnessesOath
889
Objection to competency for want of beliefHow raised
890
Former ruleHow changed by statute 715 Oath or equivalent still required
892
Infamy as a ground of incompetency
893
Same Effect of crime committed in foreign countries 718 DisabilityHow provedHow removed
895
Incapacity as a ground of incompetencyIdiotsMutes
897
IncapacityWant of
898
Mode of determining capacity of childrenThe tests to be applied
900
Degree of credit to be given such testimony
901
Want of capacityInsanity
902
SameDrunkennessDefective memory
903
Interest in the result
904
Nature of the interest necessary to disqualifyHow removed
905
Parties formerly incompetent witnesses
906
Exceptions to the ancient rulePractice in equity
907
Parties were not compelled to testify for the adversaryRule in criminal cases
908
Effect of statutes on competency of parties as witnesses
909
Same continued
912
Competency of partiesCorporators
914
Husband and wife incompetent as witnesses
915
SameThe rule in criminal cases
917
Same Confidential communications 736 Duration of disability 737 Matters which may be disclosed after marriage relation ceases 738 Same Actions f...
923
Waiver
924
ExceptionsAgency
925
Proof of the agency
926
Evidence of husband and wife tending to criminate or contradict the otherCollateral proceedings
927
Other exceptions to the general ruleDivorce
928
The marriage to be proved by the party objecting
929
Effect of statutes on the subject
930
Same continued
932
General tendency of the statutes
933
Attorneys not allowed to disclose confidential communications
934
SameThe privilege that of the clientNot confined to cases pending
935
SameDurationClient may claim the privilegeExtends to writings
938
Communication must be made in the nature of professional inter course 752 SamePrivilege does not extend to information gained in a casual manner
942
Privilege not allowed in furtherance of crime
944
Attorney may be witness for clientLitigation between attorney and client
945
Instructions for drawing wills
946
Waiver of the privilege
947
Statutes on the subject
948
Communications clergyman 759 Communications between physician and patientStatutes
949
Confined to information gained in the performance of professional duty
951
Waiver of the privilege
953
Privileged communications as to affairs of state 763 Arbitrators
957
Judges as witnesses
958
Privilege as to transactions in the jury roomGrand jurors
959
SamePetit jurorsWhen juror may be witness 767 Evidence showing misconduct of jurors
963
Accomplices
964
SameCredibility
965
What facts may serve as corroboration of accomplices 771 Telegrams not privilegedOther confidential statements
968
Competency of witnesses as to transactions with deceased persons Statutes
969
Reasons for statutesLimitationsPersons affected 774 General scope of statutesMeaning of their terms
970
Nature of the disqualifying interest
972
When the disability arisesAssigneesRepresentatives
973
Nominal and real parties
975
Mere relationship does not disqualify
977
DoneesHeirsSureties
978
WaiverConstruction of statutes
979
Waiver by examining adverse partyDepositions
980
SameFormer trials
981
Waiver by crossexamination of adverse party
983
Meaning of term transaction 786 Same continued
986
Transactions with partners
989
Transactions with agents
990
Agents representing corporations
992
The rule when third persons are present
993
The rule in respect to account books
994
Further applications of the ruleWills
995
CopartiesTrustees
996
Exclusion of persons under whom others claim title
997
Statutes excluding any matter occurring before the death
999
CHAPTER 21
1001
Fees of witnesses
1004
Mode of compelling attendance
1006
Refusal to testify
1007
Production of books and papersSubpoena duces tecum
1008
SameDiscretion of courtReview
1023
Privilege allowed counsel as to order of proof
1024
Must the relevancy of the proof appear at the time?
1025
Further illustrations of discretion of the court in conducti
1026
Questions by judgeComments by judgeprotection nessesStriking out evidence
1029
Leading questionsGeneral rule
1031
Exceptions to the ruleHostile witnessesIntroductory a 818 SamemAs to facts not rememberedFor purposes of contr 819 Leading questionsDiscretion ...
1036
CrossexaminationOn subject matter of direct examina
1037
Further discussion and qualification of the rule
1040
SameDetails may be called forQuestions showing impr of direct testimony
1041
Facts that are part of res gesta may be shown 824 Leading questions may be askedAs to new matter 825 How long right to crossexamine continues
1044
More liberal rule as to relevancy on crossexamination 827 Witness cannot be contradicted as to wholly irrelevant ma 828 Partiality of witness relevan...
1049
Contradicting the witness to prove bias
1054
Questions tending to degrade the witness as affecting bility
1056
Same subjectConflictEnglish rule 832 Same subject View that the evidence should be rece ved 833 SameContrary view
1058
View that collateral questions as to specific misconduct allowed or rejected in the discretion of the court
1059
Same Such questions admissible when material to
1061
Crossexamination of party
1062
Samen criminal cases
1063
Crossexamination as to arrests and indictments 839 Crossexamination as to conviction of crimes
1067
Independent evidence to impeach credibility by proof misconduct
1068
Actions where the chastity of women is in issue
1069
Method and extent of crossexaminationDiscretion of 843 Limitations on right of crossexamination
1071
EXAMINATION OF WITNESSES Continued
1073
Impeachment of witnesses
1074
Impeachment by proof of former contradictory statements and conduct
1075
SameLaying foundation
1077
Contradictory written statementsMode of procedure 848 Same continuedDying declarations
1082
Denial of statements not necessary to admit contradiction 850 ImpeachmentExpressions of opinionof hostility
1085
Ordinary rules do not apply in case of parties
1086
ImpeachmentWitness may explain on reexamination
1087
A party cannot impeach his own witness
1088
Same continued
1089
SameStatutes where adverse party is called as witness 856 Exceptions and qualifications of the rule
1093
Party not bound to accept testimony of his own witness as correct
1094
Same continued
1095
Reputation for veracityMode of impeachment
1096
Only general reputation for truth and veracity admissible
1099
The view that the inquiry may relate to moral character generally
1101
Inquiry as to believing the witness under oath
1103
Effect of impeachment
1104
Crossexamination of impeaching witnesses 865 Sustaining an impeached witnessLaying foundation 866 Same continued
1108
Does a collateral attack admit sustaining testimony? 868 Proof of contradictory statements of witness does not permit ep dence of his good character
1110
Former statements of witness not admissible to corroborate him
1112
Qualifications of the rule 871 ReexaminationObject
1115
SameIllustrations 873 Same continued
1117
Use of memoranda to refresh the memory of witnesses 875 SameWhen allowed
1119
Nonproduction of the memorandumCrossexamination 877 Memoranda not made by the witness 878 Copy used to refresh memory
1123
Mode of using memoranda
1126
Further illustrations and decisions
1128
Other modes of refreshing memoryUse of memoranda as evidence 884 Witnesses not compelled to criminate themselves
1131
Matters tending to criminate privileged
1132
Statement of witness claiming privilege not conclusive 887 Privilege extends to acts as well as wordsWhen to be claimed
1135
No privilege if testimony cannot be used to convict the witness 889 Same continued
1138
PrivilegeHow claimedHow waived
1140
Effect of claiming privilegeInferences
1142
SamePenalties and forfeitures
1143
Objections and exceptions to evidence
1144
SameOffer of evidenceWaiver of objections
1146
Withdrawing and striking out evidence
1148
Effect of improper admission and exclusion of evidenca
1151
Same continued 898 Weight of evidencePositive and negative
1154
Samedirect and circumstantial
1156
Number of witnesses
1158
Credibility of witnesses
1160
Same continued
1161
Same continued
1163
Cancellation of instruments
1313

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Pàgina 793 - Such depositions may be taken before any judge of any court of the United States, or any commissioner of a circuit, or any clerk of a district or circuit court, or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court, or court of common pleas of any of the United States...
Pàgina 512 - June [1677] all declarations or creations of trusts or confidences of any lands, tenements, or hereditaments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect.
Pàgina 17 - There must be reasonable evidence of negligence, but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant that the accident arose from want of care.
Pàgina 917 - But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings.
Pàgina 752 - In considering the operation of this judgment, it should be borne in mind, as stated by counsel, that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action.
Pàgina 755 - The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence, might have brought forward at the time.
Pàgina 875 - If any person called to give evidence in any court of justice, whether in a civil or criminal proceeding, shall object to take an oath, or shall be objected to as incompetent to take an oath, such person shall, if the presiding judge is satisfied that the taking of an oath would have no binding effect on his conscience...
Pàgina 591 - Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense...
Pàgina 147 - relevant' means that any two facts to which It is applied are so related to each other that, according to the common course of events, one, either taken by Itself or In connection with other facts, proves or renders probable the past, present, or future existence or nonexistence of the other.
Pàgina 667 - And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken.* 906.

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