The Law of Evidence in Civil Cases

Burr W. Jones

Bancroft-Whitney, 1908 - 1368 pàgines

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CHAPTER	1

EvidenceDefinitions of as used in municipal	2

The terms evidence and proof 5 Demonstrative and moral evidence	4

Direct and circumstantial evidence	5

Competent and satisfactory evidence 8 Other descriptive terms	6

CHAPTER	8

PresumptionsIn general	9

Presumptions of fact	10

General requisites of usagesMust be reasonable	581

The usage must be an established	582

The usage must be known	583

The usage must be consistent with the contract	584

Proof that the usage is general	586

To admit parol proof the usage must be lawful	587

Parol evidence as to consideration	588

Proof of consideration in deeds	589

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

Altres edicions - Mostra-ho tot

The Law of Evidence in Civil Cases, Volum 1
Burr W. Jones
Visualització completa - 1896

The Law of Evidence in Civil Cases
Burr W. Jones
Visualització completa - 1908

Mostra-ho tot »

Frases i termes més freqüents

action acts admissible admitted Allen allowed appear applied authority Bank Brown burden cause character circumstances cited claim Clark common competent Conn contract copies course court Davis deed defendant deposition determine discussion documents effect evidence execution existence facts former give given Gray ground held husband illustrations intention interest Iowa issue Jackson Johns Jones judge judgment judicial jurisdiction jury knowledge land Mass matters meaning Mich Minn Miss nature necessary notice objection officers Ohio opinion parol party person Pick plaintiff possession presumed presumption principle proceedings produced proof proper proved question Railway reason received record relation rule shown Smith statements statutes taken Tenn testify testimony tion trial United unless Wall Wend wife witness writing written

Passatges populars

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...

Apareix a 315 llibres de 1803-2007

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.

Apareix a 196 llibres de 1807-2007

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.

Apareix a 376 llibres de 1864-2008

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.

Apareix a 116 llibres de 1813-2006

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.

Apareix a 152 llibres de 1830-1999

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.

Apareix a 222 llibres de 1845-2007

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...

Apareix a 118 llibres de 1807-2006

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...

Apareix a 76 llibres de 1835-2000

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.

Apareix a 118 llibres de 1852-2008

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.

Apareix a 471 llibres de 1798-2006

Informació bibliogràfica

QR code for The Law of Evidence in Civil Cases

Títol	The Law of Evidence in Civil Cases Legal classics library
Autor	Burr W. Jones
Edició	2
Editor	Bancroft-Whitney, 1908
Nre. de pàgines	1368 pàgines

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