A Treatise on General Practice, Containing Rules and Sugestions for the Work of the Advocate in the Preparation for Trial, Conduct of the Trial and Preparation for Appeal

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Bowen-Merrill Company, 1894 - 1446 pàgines
 

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Continguts

Duty of advocate in consultation with witnesses
12
Copies should not be depended upon
14
Clients statement of contents not to be trusted
16
Circumstances may create probability
17
Importance of good impression in beginning 700
18
Influence of probability 22 Groundwork of inference
20
Difference between facts and evidence
21
Marks of things
22
Chief object of preparatory investigation
23
Witness should be allowed to tell his own story
24
Securing knowledge of unfavorable evidence
25
Difference between gathering materials and presenting case in court
26
Nature of evidence
27
Means of making facts evident to jury
28
Identification of persons
29
Means of identifying persons
30
Identity of animals
32
Identity of inanimate personal property
33
Identifying real property
34
Identifying documents
35
Control of the case
36
Information as to clients business
37
Object of procuring knowledge of clients standing
38
Reasons for promptly examining witnesses
39
Assumption that the client does not know the law
40
CHAPTER II
42
Provisional hypothesis
43
Use of the provisional hypothesis
44
Rudimentary principles
45
The search for the law
46
Textbooks
47
General principles
48
How a decision should be considered
50
Judicial decisions not the law itselfWhen authority
51
Obtaining principlesAnalogical reasoning
52
How to search textbooksTables of cases
53
Effect of increase in number of reported cases
54
Generalization of cases
55
Case lawyers
56
Discrimination
57
Contention is usually as to applicability of general rules
59
Law periodicalsLeading articles
60
Statutory law
61
Making law of the case available
62
Mind must act quickly
63
Practical use of knowledge
64
Fixing legal principles in memory
65
Knowledge needed by the advocate
66
Business work
67
CHAPTER III
69
Definite theory must be adopted
70
Cases lost because of a wrong theory
71
Other illustrative cases
72
Necessity of a theory
73
Definition of theory of the case
74
Different uses of word theory
75
Meaning of word theory
76
Theory means more than hypothesis
77
Difference between theory and hypothesis
78
Great lawyers skillful in constructing hypotheses
79
Hypothesis must be probable
80
Fanciful hypotheses
81
Examples of hypotheses
82
Value of hypotheses
83
Use of imagination in forming theory
84
Imagination aids in forming hypotheses
85
Effective work of advocate in constructing hypotheses
86
Working hypotheses
87
Importance of provisional hypothesis in investigating law
88
Search for signs
89
Untenable hypotheses impair strength of theory
90
Improbable hypotheses impair force of theory
91
Theory should show natural relation of facts
92
Principal facts supported by minor facts
93
Theory must inspire belief
94
How to secure belief
95
Consequences to which theory leads to be considered
97
Theory should be consistent with experience
98
Appeal to experience
99
Theory should be clear and logical
100
Matters of law and matters of fact should be kept separate
101
Presumptions of fact
102
Importance of presumptions
103
Theory should be invulnerable
105
Preparation and arrangement of details
106
Verification of theory
107
Inconsistent hypotheses to be avoided
108
Importance of verification of theory
109
Trial court theory prevails on appeal
110
Objections to proposition may not overturn it 1003
111
Limits of the rule that trial court theories continue effective on appeal
112
Courts the repository of judicial power
115
CourtsDefinition
116
Source of judicial power
118
Courts created by the Constitution
119
Creation of courtsConstitutional limitations
120
Legislative judgmentCollateral attacks
121
Appellate tribunals
123
Classes of courtsGenerally
125
JURISDICTION
126
Courts of superior and inferior jurisdiction
127
Courts of superior general jurisdiction
130
Courts of limited jurisdiction
132
The test for determining the rank of a court
133
Legislative courtsInfluence of fundamental principles
135
Inherent and implied powers of courts
136
Court can not divest itself of jurisdiction
137
TermWhen it begins
138
The common law fiction that the term is as one day
139
Terms of courtTime of holding
140
Terms of courtHolding at improper time
142
De facto terms
143
Place of holding court
145
Adjourned termsGeneral doctrine
147
Adjourned termsErrors and irregularities
148
Notice of adjourned term
151
Adjourned term regarded as continuance of regular term
152
Temporary adjournments
153
Unauthorized adjournment
154
The interim created by adjournments in termVacation
155
Continuous session
156
Special termsGenerally
157
When not advisable 1101
158
Special termsAuthority to order
159
Business of special terms
161
Adjourned and special termsDiscretionary power to order
162
Terms of courtJudicial notice
163
Judgment of the court as to the regularity of its sessionEffect of
164
Importance of the right to open and close 669
166
Presumption as to regularity of organization
169
RulesDefinition
171
RulesPower to frame
173
Considering the nature of the cause 938
174
RulesNotice of by other courts
175
Records
179
Control of records
184
Nunc pro tunc entries
186
Control of processInterference of other courts
192
Control of property
193
Importance of opening statement 681
194
Property in custodia legis
196
Ministers of the courts
200
Officers of court
201
198 Officers of courtPower to appoint
203
Officers of courtControl of
204
Control of courthouses and appurtenances
205
Agreements and stipulations of parties
206
CHAPTER V
208
Duties of a judgeGenerally
209
Statement of questions involved 940
210
Judicial duties and functions
211
Only judicial duties can be imposed on judges
212
Duties of a judge can not be delegated
213
De facto judgesGenerally
214
What constitutes a judge de facto
215
No man shall be a judge in his own cause
218
Disqualification of judges by interest
219
The degree of interest that disqualifies
220
Collateral attacks on the right of a judge to hear and decide a case
221
Questioning on appeal the right of a judge to act
222
Attack by appeal not collateral
223
Various statutory disqualifications
224
Necessity may compel disqualified judge to act
225
Special judges
227
Who appoints judges pro tempore
229
Mode of appointing special judges
230
Procedure respecting appointment of special judges
231
Objections to special judges 232 1
232
Presumption of regularity in appointment
234
Authority of special judges
235
Determining the court in which to sue
238
Anticipating the defense 685
239
Jurisdiction of courtsDefinition
240
Elements of jurisdiction
243
Source of jurisdiction over legal controversies
247
Exercise of jurisdictionInstrumentalities
248
Classification
252
Final judgments 1177
254
Original jurisdiction
256
Exclusive jurisdictionConcurrent jurisdiction
257
Jurisdiction of the general subject
259
Jurisdiction of the particular subject
260
Distinction between jurisdiction of a general subject and jurisdic tion of a particular subject
264
Equity jurisdiction
267
Law jurisdiction
270
Jurisdiction in personam
278
Inspection of personIn what cases 808
279
Status of personsAuthority to determine
285
Status of childrenAuthority to adjudge
290
Domicile as affecting jurisdiction
311
Experiments and practical tests 811
313
Presumption of jurisdictionSuperior courts
315
Presumption of jurisdictionInferior tribunals
316
Averment of jurisdictional facts
318
Judgment by defaultPresumption
319
Effect of assuming jurisdictionImplied decision asserting juris diction
322
Decision that jurisdictional facts existConclusiveness of
323
Recitals of jurisdictional facts or matters
325
Collateral proceedings
330
Judicial proceedings are void voidable and regular
331
Objections to jurisdiction
332
Loss of jurisdiction
334
Exceeding jurisdiction
338
Estoppel to deny jurisdiction
342
Transfer of jurisdiction
347
Election to try by court or jury
349
Effect of mistake in choice of remedy
350
Facts differently pleaded may bring different result
351
Nature of relief may determine choice of remedy
352
Election of remedy in case of fraudulent purchase
353
Election as against trustee
354
Right to jury trial
355
Considerations which determine whether to try by court or jury
356
Instructions where trial is by jury
357
Delay and partiality of judge
358
CHAPTER VIII
359
Accounts
361
Agents and fiduciaries
362
Contracts generally
363
Contribution
364
Corporations
366
Judgments
368
Nuisance
369
Real property
370
Trusts
372
What law governs
373
Election of remedy
374
Setoff
375
EquityLaches
376
When action is begun
377
Computation of time
379
Effect of disability
380
New promise or acknowledgment
381
Special limitations
384
Presumptions
385
Cause of action must be complete
387
Requisites of a complete cause of action
388
Damages essential to a complete cause of action
390
Exceptions to the rule that damages must be shown
391
DemandWhen necessary
392
DemandHow made
395
Admissions in demand
396
DemandWhen waived or excused
397
TenderWhen necessary
398
TenderHow made
399
TenderEffect of
401
Tender to be kept good
402
Equitable tender
403
Waiver of tender
404
Offer to perform
405
Taking possessionCompleting evidence of title or right
409
Notice
411
Notice for inspection of documents
413
Effect of neglecting to take precautionary measures
414
Witnesses and subpænas
415
Setting forth particulars of claim
416
Final consultation with client
417
Notes of evidence
418
Development of the theory
419
Witnesses should be presentDepositions
420
Care required in taking precautionary measures
421
CHAPTER X
422
The modern practice
423
Writ or notice must be authorized by law
424
Power of legislature to prescribe what the notice shall be
425
Defective process
426
How action is brought
428
Name and title of court
429
Name of defendant
430
Nature and extent of plaintiffs claim
431
Date of summons and return
432
Signature and seal
433
Amendments
434
ServiceBy whom
436
Personal service
437
Service on corporations
440
Service on partners
442
Service on infants
443
Service by publication
444
Statute must be strictly followed
445
Affidavit for publication
446
Order and notice
447
Requisites as to newspaper in which publication is made
448
Time of publication
449
Proof of publication
451
Mailing and posting notice
452
Objections
453
Waiver
454
Return and proof of service
455
PrivilegeExemption from service of process
457
Capias ad respondendum
458
Alias and pluries writs
459
CHAPTER XI
461
AttachmentGenerally
462
When attachment will lie
463
Grounds of attachment
464
Procedure in attachment
465
Filing under attachment
466
Property subject to attachment
467
Lien of attachment
468
Dissolution of attachment
469
GarnishmentGenerally
470
Procedure in garnishment
472
Duty and liability of garnishee
474
Ne exeat
476
InjunctionGenerally
477
When injunction lies
480
InjunctionProcedure
486
ReceiversGenerally
493
When appointed
494
Procedure in obtaining receiver
495
Lis pendensNotice
498
NoticeStatutory
499
Doctrine of relation
500
CHAPTER XII
501
General suggestions
502
General ruleBest evidence must be produced
503
Laying the foundation for secondary evidence
505
Depositions
507
Object of crossexamination 743
509
CertificateWhat it should show
510
Motion to suppress
511
Waiver of objections
513
DiscoveryExamination of party before trial
514
Choice of instruments of evidence
515
Tendency of modern legislation
516
Objections to competency
517
IncompetencyGrounds of objection
518
Notice to witnessSubpenaAttachment
521
Real evidence
522
CHAPTER XIII
524
Mixed questions of law and fact
525
Conclusions of law
526
SPECIAL VERDICTS
529
Agency
531
Alteration of written instruments
532
Boundary and location
533
Confidential and ot relations
535
Construction of written instruments
536
Construction of unwritten contracts and language
539
Fraud and good faith
540
Identity
541
IntentMalice
542
Laws and ordinances
545
Negligence
546
Notice and knowledge
548
Payment
550
Possession and ownership
551
Probable cause
552
Reasonable time
553
Waiver and abandonment
556
Miscellaneous questions
558
CHAPTER XIV
561
Matters to be considered in advising a compromise
562
Authority to compromise
564
Offer to compromise
565
Consideration
566
Negotiating a compromise
568
Effect of a compromise
569
Abandonment and rescission 1
570
CHAPTER XV
572
Classes of submission
573
Importance of discriminating between a general and a partial sub mission
574
Statutory and common law submissions
575
When arbitration is advisable
577
When arbitration is inexpedient
579
Who may submit
581
What may be submitted
583
Revocation of submission
585
Ratification of submission
586
Specific performance of agreement to submit
587
Effect of agreement upon right to sue
588
Who may be arbitrators
590
Arbitrators must act together
591
Amending the verdict 1121
599
Case agreed or special case 1134
601
VOLUME II
602
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Passatges populars

Pàgina 5 - tis not so deep as a well, nor so wide as a church door ; but 'tis enough, 'twill serve : ask for me to-morrow, and you shall find me a grave man.
Pàgina 355 - Wall. 342, 347, it was said, that, " hi suits in equity, where relief is sought on the ground of fraud, the authorities are without conflict in support of the doctrine that, where the ignorance of the fraud has been produced by affirmative acts of the guilty party in concealing the facts from the other, the statute will not bar relief, provided suit is brought within proper tune after the discovery of the fraud.
Pàgina 249 - It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.
Pàgina 212 - An officer de facto is one whose acts though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised...
Pàgina 61 - ... although we think we govern our words, and prescribe it well, "Loquendum ut vulgus, sentiendum ut sapientes;" yet certain it is that words, as a Tartar's bow, do shoot back upon the understanding of the wisest, and mightily entangle and pervert the judgment...
Pàgina 82 - Let any one watch the manner in which he himself unravels any complicated mass of evidence ; let him observe how, for instance, he elicits the true history of any occurrence from the involved statements of one or of many witnesses...
Pàgina 280 - A decree cannot operate beyond the State in which the jurisdiction is exercised. It is not in the power of one State to prescribe the mode by which real property shall be conveyed in another. This principle is too clear to admit of doubt.
Pàgina 278 - In truth, nothing can be more unfounded than the doubts of the jurisdiction. That is grounded, like all other jurisdiction of the court, not upon any pretension to the exercise of judicial and administrative rights abroad, but on the circumstance of the person of the party, on whom this order is made, being within the power of the court.
Pàgina 278 - ... necessary parties are before a court of equity, It is Immaterial that the res of the controversy, whether It be real or personal property, Is beyond the territorial jurisdiction of the tribunal. It has the power to compel the defendant to do all things necessary, according to the lex loci rel sitse, which he could do voluntarily, to give full effect to the decree against him.
Pàgina 80 - Order is the sanity of the mind, the health of the body, the peace of the city, the security of the state. As the beams to a house, as the bones to the microcosm of man, so is order to all things.

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