A Treatise on General Practice: Containing Rules and Suggestions for the Work of the Advocate in the Preparation for Trial, Conduct of the Trial and Preparation for Appeal, Volum 2

Byron Kosciusko Elliott, William Frederick Elliott

Bowen-Merrill Company, 1894 - 1446 pàgines

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CHAPTER XVI	603

Authority to appear	604

General appearance	607

Effect of a general appearance	609

Special appearance	612

Effect of special appearance	613

Withdrawal of appearance	614

CHAPTER XVII	616

Statement of facts	939

Statement of questions involved	940

Referring to authorities	942

Points in the case	943

Discussion of judicial decisionsPrinciple	944

PrecedentStare decisis	948

Attacking judicial decisions	951

Applying legal principle to particular case	955

Bad policy to ask many continuances	617

Causes for continuance	618

Time for making applicationRules of court	621

Admissions may justify denial of application	623

ConditionsPayment of costs	624

Error in refusing continuanceHow saved or cured	625

CHAPTER XVIII	626

Who may have	628

Number of changes allowed	629

To what county	630

When application must be made	631

Rules of court as affecting time of making application	632

Excuses for not making application in time	633

The applicationAffidavits	634

Notice of application	635

ObjectionsWaiver	636

Order granting change	637

Effect of changeJurisdiction	638

Change of judge	639

Saving questions for appeal	641

CHAPTER XIX	642

Number of jurors	643

Waiver of right to jury	644

Right to impartial jury	645

Selecting the jurorsGenerally	646

Manner of questioning jurors	647

Purpose of examination	648

Objects to be kept in view	649

Peremptory challengesRight to be carefully exercised	650

PrejudiceExamination with reference to particular case	651

Challenging the array	652

Principal grounds of challenge for cause	653

PAGE	654

Lack of statutory qualifications	655

Disqualification because of personal hostility or bias	656

Disqualification because of pending lawsuit	658

Disqualification on account of opinion	659

Trying grounds of challenge	661

526 Examination of juror on voir dire	662

Peremptory challengesNumber	663

When right to challenge must be exercised	664

Waiver of objections to jurors	665

Grounds of challenge must be specific	666

Excusing jurors	667

CHAPTER XX	669

Its advantages and disadvantages	670

When defendant should assume the burden	671

Dangers in assuming burden	673

Right and duty correlative	674

Who has the right to open and closeGeneral rule	675

Right where several issues or defendants	676

How plaintiff may prevent defendant from acquiring the right	677

Effect of failure to offer evidenceWaiver	678

CHAPTER XXI	681

Of what it should consist	682

Its leading purpose	684

Anticipating the defense	685

Arguing too soon	687

How to secure clearness	688

Attention of jury must be aroused	689

Suggestive statement	690

Evidence should not be overstated	691

Keeping statement within proper limitsDiscretion of court	692

CHAPTER XXII	694

To whom the order applies	695

Effect of disobedience of order by witness	696

Right to limit the number of witnesses	697

Constitutionality and effect of statutes prescribing number of wit nesses	698

Objections and exceptionsWaiver	699

CHAPTER XXIII	700

Orderly arrangement of evidence	701

Natural order should be adopted	702

Attention to details	703

Discretion as to order of introducing evidence	704

Evidence in anticipation of defense	705

Evidence irrelevant at time introduced upon promise to make relevant	706

Reopening the case	707

Objections should be made only to harmful evidence	708

Objections should be supported	709

Objections to leading questions	710

Objections must be specific	711

Objection where question is proper but answer incompetent	713

Trial of competency of witnessesPreliminary examination	715

Extent and method of preliminary examination	716

Interposing questions to determine competency of evidence	717

Exception to ruling on objection	718

Effect of irrelevant evidenceOpening door for adversary	719

Striking out evidence	720

Quantity of evidence	722

CHAPTER XXIV	723

Inspiring witness with confidence	724

Introductory questions	725

599 Manner of asking questions	726

Leave to ask leading questions	727

Calling attention to omissions	728

Errors to be avoided	729

Repetition	730

Witnesses who prove too much	732

Hostile witnesses	733

Unfavorable answerHow to avoid its effect	735

Compound questions	736

Assuming facts	737

Matters of opinion	738

Examination of experts	739

Examination of deaf and dumb witnesses	741

CHAPTER XXV	743

Crossexaminers position	744

When apparent crossexamination is advisable	745

When advisable not to crossexamine	746

Purposeless crossexamination	748

Timid witnessHow to crossexamine	749

Bold and unscrupulous witnessHow to crossexamine	750

THE ADDRESS TO THE JURY	751

Course where testimony is false	752

Order of crossexamination	753

Coloring testimony	755

Perils of crossexamination	756

Reluctant witnessHow to treat	758

ExplanationsWhen to crossexamine for	759

Detection of falsehoodKeeping knowledge from witness	760

Crossexamination as to time and place	761

Witness who does not rememberHow to treat	762

Crossexamination as to motive	763

Facts should be separated from inferences	764

Interested and prejudiced witnessesHow to treat	766

Sources of error	767

Error in memoryCrossexamination to discover	769

Error as to identity	770

HypothesisCrossexaminer should form	772

Danger in asking too many questions	774

Expert witnessesClasses of	775

Crossexamination of professional experts	776

Duty of opposing counsel	778

Leading questions	779

Questions calling for criminating answer	780

Compound questions	781

Extent of crossexaminationLatitude allowed	782

ObjectionsWhen to be made	784

CHAPTER XXVI	785

Restoring confidence	786

Asking for explanations	787

Sustaining corrupt or impeachable witness	788

Treatment of favorable new matter developed on crossexamination	789

Explaining discrepancies	790

Recalling witnesses for reexamination	791

ObjectionsUse and abuse of	792

CHAPTER XXVII	794

Exceptions to the rule	795

Right to impeach witness of adverse party	797

Impeachment by proof of contradictory or inconsistent statements	798

Laying the foundation for impeachment by contradictory state ments	800

Impeachment by evidence of character or reputation	802

Specific acts of immorality	804

Crossexamination of impeaching witness	805

Corroborating and sustaining witnesses	806

Right to be heard in argument	817

Misconduct of counselHow taken advantage	823

Making the cause speak	829

Examples of the power of words	835

MethodWhat determines	841

Argument should seem intrinsically strong	846

ExplanationNature and use of	847

Explanation in civil cases	850

Explanation by examples	851

Refutation of explanation	853

Examples that appear to explain but do not	856

Partial explanation given as complete	857

Description as an element of the address	859

Narrative part of the address	862

Masters of narrative	864

Essentials of narrative	865

Effect of theory on narrative	866

Ultimate purpose of narrative	868

Rhetorical invention	870

Use of circumstances	871

Groundwork and materials of invention	872

Molding the materials into form	875

Probability is essential	876

Appeal to experience	877

Natural actsMotives	880

Acts apparently unnatural must be made to appear natural	881

Probability established by assigning adequate cause	882

Importance of probability	883

Order of narrating facts	884

Dealing with the parties and witnesses	886

Making too many points	887

RepetitionHow far an element of strength	889

Extent and manner of refutation	890

Attacking adverse hypothesis	892

Use of analysis in refutation	893

Indirect attack	894

Suggestive method	895

Stratagem of attacking few points	896

AdmissionsWhen advisable	897

Conflict in testimonyHow treated	899

Mistakes of witnessesHow caused and treated	900

Commenting on testimony of admissions	903

Course where witness is discredited	904

Showing the motive of corrupt witness	905

Other matters to be shown where witness has sworn falsely	908

Imperfect recollection of witness	910

False witnesses deal in generalities	912

Interest of witness	913

Meaning and use of the maxim false in one false in all	914

Use of incidental matters to support witness	916

Immaterial inconsistencies	917

Relative force and value of positive and negative testimony	918

Commenting on inconsistencies or differences in statements made at different times	920

Use of presumptions	921

Applying the law to the facts	923

ConsequencesArgument from	924

PersuasionAppeal to passions	926

CHAPTER XXX	929

Preparation of argument	930

Elementary principles	931

Strategy	933

Superiority of oral arguments	934

Prolixity to be avoided	935

Reason and eloquence	936

Considering the nature of the cause	938

Use and abuse of maxims	956

Effect of harsh operation of general rule in particular instance	958

Showing case to be within exception to general rule	960

Course where no precedent is found	962

Extending precedents to new cases	963

Consideration of consequences	965

DiscriminationDenying application of rule to particular case	966

Arguing for the application of the rule	967

843	969

Weak argument should be avoided	970

How to expose fallacies	972

Finding the fallacy	974

Principal classes of fallacies	975

Illicit assumption in analogical reasoning	977

Fallacy of examples	978

Incomplete discrimination	979

Non causa pro causa 983 1	983

Verbal fallacies	984

Fallacy of equivocation	987

Begging the questionVicious circle	988

Fallacy of experience	991

Fallacia accidentis	994

Incomplete division	995

Dilemmas	997

Incomplete enumeration	998

Incomplete induction or imperfect generalization	999

Non sequitur	1001

Mistaking the point in dispute	1002

Objections to proposition may not overturn it	1003

Suppressing a material factor	1004

Artifice of covert assumption	1005

Asserting deduction as a fact	1006

Artifice of stating objections to ones own argument	1007

Dissecting and refuting probabilities separately	1008

Artifice of repeating same argument in different forms	1009

Artifice of evasion	1010

Artifice of praising opposing counsel	1012

Artifice of insinuation	1013

Supposed cases	1015

Unprofessional tricks	1016

Forensic tactics	1017

Consultation with jurors	1018

CHAPTER XXXII	1020

Determining the line of action	1022

Cases that may be taken from the jury	1023

Demurrer to the evidence	1024

Nature of a demurrer to the evidence	1025

Intendments against the party who demurs	1026

What the demurrer admits	1027

What the demurrer waives	1029

Demurrer withdraws favorable evidence	1030

What the demurrer must contain	1031

Effect of demurrer on the right to subsequently introduce evidence	1032

Crossexamination of adverse witness not a waiver of the right to demur	1033

Withdrawal of the demurrer	1034

Judgment on demurrer	1035

Risk in demurring to the evidence	1036

Reluctance of judges to disturb verdicts	1037

Cautious crossexamination necessary where a demurrer to the evidence is resolved upon	1038

Compulsory nonsuit	1039

Nonsuit where there are several parties	1040

Test for determining when motion for nonsuit should be sustained	1041

When motion must be made	1042

Introducing evidence after motion for nonsuitWaiver	1043

Voluntary nonsuit or dismissal	1046

Time of taking nonsuit	1048

Voluntary nonsuit not appealable	1049

Withdrawing a juror	1050

When instruction directing verdict must be requestedWaiver	1051

When verdict will be directed	1053

When not directed	1055

CHAPTER XXXIII	1058

English rule in Federal courts	1059

What may be considered as a part of the charge	1060

Preparing the instructions	1061

Requesting instructions	1063

Compliance with requestModification of instructions requested	1065

Instructions must be pertinent	1066

Disputed facts should not be assumed	1068

Instructions as to weight or credibility of evidence	1069

Giving undue prominence to particular evidence	1071

Cautionary instructions	1072

Construing instructions	1075

Withdrawing and correcting instructions	1076

Additional instructionsRecalling jury	1077

Excepting to instructions	1078

When erroneous instruction is not fatal	1081

CHAPTER XXXIV	1083

When advisableCaution to be observed	1084

When a matter of rightDiscretion of court	1087

Form and manner of submitting	1088

Request must be conditional upon return of general verdict	1089

Interrogatories must be material and call for facts	1090

When interrogatories may be withdrawn	1091

Interrogatories must be fully and fairly answered	1092

Objections to interrogatories	1093

Remedy where answers are uncertain or evasive	1094

Answers must be signed by foreman	1095

Presumptions and intendments	1097

CHAPTER XXXV	1099

Right to special verdict	1100

When not advisable	1101

May prevent defeat where judge is unfavorable	1102

Special verdict must find the ultimate facts	1103

ConstructionPresumptions and intendments	1106

Motion for judgmentExceptions	1107

Remedy where verdict is defective Venire de novo New trial	1108

CHAPTER XXXVI	1110

Recording the verdict	1111

Polling the jury	1112

Form of the verdict	1113

Construction of verdict	1115

Verdict must conform to issues	1116

Chance verdict	1118

Compromise or quotient verdict	1119

Objections to verdict	1120

Amending the verdict	1121

Discharge of juryCoercion	1122

Attacking and sustaining verdict	1124

CHAPTER XXXVII	1126

Trial by the court	1127

Request for trial by the court	1129

Request where case partly for court and partly for the jury	1130

Waiver of right to trial in a particular mode	1131

Conduct of trial by court	1132

Misconduct of the court	1133

Case agreed or special case	1134

Statement of facts in a case agreed or special case	1135

Agreed case	1136

The principal elements of an agreed case	1137

965 The office of the statement of facts in an agreed case	1138

Effect of making and submitting an agreed case	1140

Special finding of facts and conclusions of law	1141

Duty of the court to make special finding	1142

Request for special finding	1143

Time at which special finding must be requested	1144

Construction of the finding	1145

Silence on a material pointEffect of	1146

The conclusions of law	1147

Finding outside of the issues	1148

Challenging the finding of facts	1149

Exceptions to the conclusions of law	1150

Right to change special finding after filing	1151

Remedy where the judgment does not conform to the finding	1152

CHAPTER XXXVIII	1153

Venire de novo	1154

Repleader	1155

Motion for new trialNature and office of	1156

Grounds for new trial	1157

Who may move for new trial	1161

When motion must be madeTime	1162

Form and contents of motion for new trial	1164

Joint and several motions	1167

Ruling on the motionExcepting to ruling and preparing for appeal	1168

Waiver of right to move for new trial	1169

Motion in arrest of judgment	1170

Motion for judgment non obstante	1171

Motion for judgment on special findings	1173

CHAPTER XXXIX	1174

Nature of a judgment	1175

Determination of the issue	1176

Splitting demands	1177

Form of judgment does not determine its character	1180

Final judgmentsExceptional casesIndependent issues	1181

Interlocutory judgments	1182

Interlocutory judgmentsIllustrative cases	1183

Decrees	1185

Form and contents of decrees	1186

Interlocutory decrees	1187

Judgment on dilatory pleas or answers	1188

Judgment should be entered in book designated by law	1189

Time of entering judgments	1190

Form and contents of judgments	1191

Construction of judgments and entries	1192

Verdict or finding not conclusive	1193

Joint and severel judgments	1194

Judgment where pleas or answers in bar are filed	1195

Judgment by default	1196

What constitutes a default	1197

Time to pleadComputation of	1198

Effect of failure to formally enter default	1199

Relief from judgments by default	1200

Entries nunc pro tunc	1201

Objections to judgments	1202

CHAPTER XL	1204

Laying the foundation	1205

A decision must be secured or there must be a refusal to decide	1207

DemurrersAider by verdict	1208

Motions	1210

Objections	1213

Cases constituting exceptions to the rule that objections must be made in trial court	1214

An objection must not be too broad B2	1215

Objections must be interposed by the proper party	1216

ExceptionsNature of	1217

Necessity for exceptions	1218

Exceptions can not be taken in advance of the ruling	1219

Exceptions must be addressed to specific rulings	1220

Reducing exceptions to writing	1221

Bill of exceptionsOffice of	1222

When a bill of exceptions is requiredGenerally	1223

Construction of the bill	1225

Stating the exceptions	1226

Duty of settling bills of exceptions is judicial	1227

The bill imports absolute verity	1228

Stating the evidence	1229

What matters should be brought in by a billIllustrative cases	1230

Making available error manifest	1231

Separate bills	1232

Collateral motions not part of record proper	1233

Bill should be complete before it is signed	1234

Making written instruments part of the bill by reference	1235

Stenographers report of the evidence	1236

Extension of time to file bill	1237

When considered filed	1238

By whom the bill should be signed	1239

Compelling judge to sign billMandamus	1241

Amendment of bills of exception	1243

The order directing the amendment	1244

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A Treatise on General Practice: Containing Rules and Suggestions for the ...
Byron Kosciusko Elliott,William Frederick Elliott
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accord and satisfaction adversary adverse adverse witness advocate affirmative defense amination answer appear argument asked assume believe Best's better Brown cause challenge for cause character Colo Compare Compound questions Conn counsel course Crim cross-examination Davis defendant discretion disqualify effect error evidence examination explanation favor give Gratt Greenl ground held impeach important impression incompetent incompetent evidence inference Iowa Jones judge jurisdictions juror jury Mass matter ment mind Minn motive N. E. Rep N. Y. Supp narrative natural ness number of witnesses objection Ohio St open and close opinion party peremptory challenges person plaintiff plead proper purpose Quintilian R. R. Co reason right to open rule S. W. Rep says Smith statement statute strong Tenn testify testimony Texas things tion trial court true truth unless verdict

Passatges populars

Pàgina 843 - Hume is an accomplished advocate. Without positively asserting much more than he can prove, he gives prominence to all the circumstances which support his case; he glides lightly over those which are unfavourable to it; his own witnesses are applauded and encouraged; the statements which seem to throw discredit on them are controverted; the contradictions into which they fall are explained away; a clear and connected abstract of their evidence is given. Everything that is offered on the other side...

Apareix a 84 llibres de 1828-2008

Pàgina 1054 - ... before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.

Apareix a 251 llibres de 1832-2004

Pàgina 918 - I KNOW not a more rash or unphilosophical conduct of the understanding, than to reject the substance of a story, by reason of some diversity in the circumstances with which it is related. The usual character of human testimony is substantial truth under circumstantial variety. This is what the daily experience of courts of justice teaches. When accounts of a transaction come from the mouths of different witnesses, it is seldom that it is not possible to pick out apparent or real inconsistencies between...

Apareix a 87 llibres de 1810-2007

Pàgina 846 - ... appeared or seemed to me some difference, etc. I soon found the advantage of this change in my manner ; the conversations I engaged in went on more pleasantly. The modest way in which I proposed my opinions procured them a readier reception and less contradiction; I had less mortification when I was found to be in the wrong, and I more easily prevailed with others to give up their mistakes and join with me when I happened to be in the right.

Apareix a 116 llibres de 1818-2008

Pàgina 749 - Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail, or the fearful ; rough to the ruffian, and a thunderbolt to the liar. But in all this, never be unmindful of your own dignity. Bring to bear all the powers of your mind, not that you may shine, but that virtue may triumph, and your cause may prosper.

Apareix a 27 llibres de 1882-2007

Pàgina 991 - Whenever any wound had been inflicted, this powder was applied to the weapon that had inflicted it, which was, moreover, covered with ointment, and dressed two or three times a day. The wound itself, in the meantime, was directed to be brought together, and carefully bound up with clean linen rags, but above all, to be let alone for seven days, at the end of which period the bandages were removed, when the wound was generally found perfectly united.

Apareix a 24 llibres de 1824-2004

Pàgina 953 - The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned.

Apareix a 228 llibres de 1879-2008

Pàgina 659 - It hath beenallow' ed a good cause of challenge on the part of the prisoner that the juror hath declared his opinion beforehand, that the party is guilty, or will be hanged, or the like. Yet it hath been adjudged that if it shall appear that the juror made such declaration from his knowledge of the cause, and not out of any ill will to the party, it is no cause of challenge.

Apareix a 45 llibres de 1769-2000

Pàgina 1085 - If it is apparent on the face of the act that its provisions, from their very nature, cannot and will not conduce to any legitimate police purpose, it is the right as well as the duty of the court to pronounce it invalid, as in excess of legislative power, and an arbitrary and unwarranted interference with the right of the citizen to pursue any lawful occupation.

Apareix a 14 llibres de 1876-1939

Pàgina 937 - I do not say but they may justly direct us to enact that they shall be treason for the future. But God keep me from giving judgment of death on any man, and of ruin to his innocent posterity, upon a law made a posteriori. Let the mark be set on the door where the plague is, and then let him that will enter, die.

Apareix a 37 llibres de 1810-2006

Informació bibliogràfica

Títol	A Treatise on General Practice: Containing Rules and Suggestions for the Work of the Advocate in the Preparation for Trial, Conduct of the Trial and Preparation for Appeal, Volum 2 A Treatise on General Practice: Containing Rules and Suggestions for the Work of the Advocate in the Preparation for Trial, Conduct of the Trial and Preparation for Appeal, William Frederick Elliott
Autors	Byron Kosciusko Elliott, William Frederick Elliott
Editor	Bowen-Merrill Company, 1894
Nre. de pàgines	1446 pàgines

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