An illustrated treatise on the law of evidence (Google eBook)

Front Cover
Callaghan, 1905 - Law - 678 pages
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Contents

Discretionary judicial notice
9
Subclassifleatlons
10
Presumptions of fact
12
BURDEN OF PROOF 1 Double sense IS 2 Upon whom it rests
15
Amount of proof required in criminal cases
16
Negligence If 8 Negligence of common carriers
17
Negligence of bailees
18
Quo warranto proceedings
19
The right to open and close
20
CHAPTER V ADMISSIONS SECTION PAGE 1 Definition 81
21
Admissions of a prior owner of real estate
22
Admissions of an executor or administrator of a devisee or legatee and of an heir
23
Admissions of a husband and of a wife
24
A demurrer and a plea as admissions
25
CHAPTER VL
26
Withdrawal of the case from the jury
27
Matters which constitute questions of fact
28
CHAPTER VII
31
Joinder in demurrer
32
Form and substance of the demurrer
33
PART II
35
Similar acts of defendant which cause injuries to others
36
Injuries caused to others by the same act
37
Methods and appliances adopted by others as a standard of comparison
38
CHAPTER II
39
The rule in civil cases
41
Particular acts as evidence of character
42
Personal opinion of character
43
CHAPTER III
44
Burden of proof
45
A person in authority
46
Criminating statements of facts
47
CHAPTER V
53
CHAPTER VIII
62
Constitutionality ol this exception to the hearsay rule
63
Essentials of admissibility
64
Declarant in extremis and conscious thereof
65
Mode of proving declarants consciousness of his Impending death
66
Form of dying declarations
68
Right to impeach or corroborate dying declarations
69
Preliminary evidence requisite and mode of introducing it
70
CHAPTER IX
72
Qualifications of the declarant
73
The declaration must have been made ante litem motam
74
Declarations pertaining to illegitimacy
75
Form of the declaration
76
Weight of declarations relating to pedigree
77
CHAPTER X
78
Requisites of admissibility
79
The declarations must be community reputation and not merely individual opinions
80
Particular facts
81
Necessity of proof of enjoyment of the interest or right
82
CHAPTER XI
83
Grounds of admissibility
84
State papers
85
Official records andrepro?X
87
Unofficial public documents
88
Almanacs
89
Mode of proving public documents
90
CHAPTER XII
91
The general rule
92
Production of document from proper custody
94
Corroborative evidence of the authenticity of the document
95
Scope of admissibility of ancient documents
96
CHAPTER XIII
97
The adverse interest of the declarant
98
Competency of the declarant
99
The declarant must be dead
100
Admissible in a suit between strangers
101
Form of the declaration
102
Weight of this class of declarations
103
CHAPTER XIV
104
The modern English rule
105
Grounds of admissibility
106
Entries must be original
107
The person who makes the entry must have personal knowl edge
108
The nature of the entries
109
Entries must be free from suspicion ill 14 Death of entrant not essential Ill 15 Mode of proof
111
Effect of statutory enactments which make parties to the suit competent witnesses
112
missible
114
CHAPTER XV
117
Grounds of admissibility
118
The entries must be contemporaneous with the transactions to which they relate or be made within a reasonable time thereafter
119
The entrant must be dead or at least unavailable as a witness
120
Partnership entries
121
Mode of proof
122
CHAPTER XVI
123
Requisites of admissibility
124
They must be spontaneous and natural expressions of the pain or suffering
125
To whom the declarations may be made
126
Effect of statutes which permit parties to the suit to testify
127
Declarations bearing upon the mental condition of the declar ant
128
Declarations of affection emotion malice prejudice etc
129
Testamentary declarations
130
Posttestamentary declarations
131
SECTION PACT 15 Other theories relating to posttestamentary declarations
132
sible
133
CHAPTER XVII
134
Scope of the term res gestae
135
Verbal acts which constitute part of the issue
136
Declarations which constitute a verbal part of an act material in the case
137
The declarations must be contemporaneous with the act
138
Declarations made by a party in possession of property
139
Declarations made hy an alleged bankrupt
140
Declarations made by a testator affecting a revocation of his will
141
Declarations which constitute circumstantial evidence of an existing condition
142
Spontaneous declarations
144
Not essential that the declarations be strictly contemporaneous
145
A confusing and misleading statement by Professor Greenleaf
146
Declarations of agents
147
Declarations in rape cases
148
The second theory
149
The third theory
150
The American doctrine
151
Declarations of bystanders
152
The rule in criminal cases
153
The tendency of some courts to relax this exception to the hearsay rule
154
CHAPTER XVIII
155
Expert testimony as to certain facts
156
Expert opinion evidence
157
An expert witness
158
a The hypothetical question
159
Compensation of expert witnesses
160
Number of expert witnesses allowable
161
Proof of handwriting by nonexperts
162
Proof of handwriting by comparison
163
PART III
165
The general rule
166
Application of the rule in civil cases
167
Photographs maps and models
168
Mechanical contrivances inventions
169
The objection raised to a view
170
The objection of undue prejudice
171
The objection of indecency or other impropriety
172
Voluntary exhibition of the person in personal injury cases
173
Compulsory examination of the person in civil cases
174
When application for an order for a compulsory examination should be made
175
SECTION PAQB 17 Mode of enforcing the order
176
Examination of the person of the prosecuting witness
177
Weight to which real evidence is entitled
178
EVIDENCE OF EXPERIMENTS 1 Definition
179
Experiments out of court by witnesses
180
Evidence of experiments also admissible to explain or support nonexpert evidence
181
Evidence of experiments admissible to show that under certain conditions a certain result would or would not follow
182
Admissibility of evidence of experiments made with blood hounds
183
PART IV
185
Definition Attestation Authentication Exemplification
186
Origin of the rule
187
Mode of attestation in some states
196
Mode of proving state court records
197
Mode of proving quasijudicial records
198
Public records Their mode of proof
199
Same Executive documents State papers
200
Same Municipal records
201
Same Weather reports
202
CHAPTER II
203
Reasons for the rule
204
Application of the rule
205
Same Bona fide purchasers of negotiable instruments
206
Same Certified checks
207
Ratification of alterations
209
Alterations made accidentally or by mistake
210
Material alterations versus immaterial alterations
211
Presumptions and burden of proof
212
Parol evidence Admissions
215
Province of court and jury
216
PROOF OF CONTENTS THE BEST EVIDENCE RULE SECTION PASE 1 The rule
217
Secondary evidence Its meanings and scope
218
When secondary evidence is admissible
219
Degrees of secondary evidence 20
220
Same Burden of proof
221
Same Destruction of original by proponent
223
Same Notice or demand to produce the original
224
What constitutes reasonable notice
225
When notice to produce is not essential 27
227
Consequences of refusal to produce
229
Application of the best evidence rule to chattels and inscrip tions on chattels
230
Same Professor Wigmores view
233
CHAPTER IV
235
Origin and development of the parol evidence rule
236
Reasons for the rule
237
Merger of prior and contemporaneous agreements conclusively presumed
238
Exceptions and limitations
239
Existence and validity of the contract
240
Incomplete documents
242
Collateral contemporaneous or prior parol agreements
244
Same Oral warranties
245
Receipts versus releases
246
Consideration
248
Dates
249
To aid interpretation
250
SCCTIOir PAGE 21 An excessive description not inherently fatal
251
To rebut or support an equity
252
To establish a resulting trust
255
To show alteration of a document
256
To explain an ambiguity To interpret an equivocation
257
Same Chaplins view
258
Declarations of intention Equivocation
259
Same Schoulers view
260
The muchconsidered case of Miller v Travers
261
Effect of Doe v Hiscocks
262
Rule applicable to the legal Import of a document
263
4a Rule not applicable to strangers to the document
264
PART V
265
Parties to the record
266
The common law rule abolished
270
Deaf and dumb persons
273
Infants of tender years
274
Same Crossexamination Weight of testimony
275
Persons convicted of infamous crimes
276
Husband or wile of party to suit
278
Accomplices
280
IS Judicial officers
281
SECTION PAGE 20 Grand jurors
283
Attorneys
284
CHAPTER II
286
Professional communications
287
Communications between physicians and their patients
290
Same Waiver of the privilege
293
Same Exceptions to the general rule
294
Communications between spiritual advisers and laymen
295
Same Waiver of the privilege
296
Communications which pertain to affairs of state
297
Communications which pertain to the administration of penal justice
298
Judicial communications
301
Same Impeaching their verdict
302
Same The third principle
303
Same The modern English rule
304
Same The American rule
305
Same Chief Justice Shaws view
306
Deliberation of grand jurors
307
Deliberation of arbitrators
310
Social communications Husband and wife
311
Business communications Telegraphic dispatches
316
CHAPTER III
319
Same Usual forms at common law
320
SECTION PAGE 4 The custom of kissing the bible
321
Same Constitutional and statutory provisions in Illinois
322
statute 18
323
Effect where an atheist takes the oath and testifies Brad laughs case
324
The true purpose of the oath The early view Its injustice The modern view
325
Capacity of infants to testify Oath capacity and testimonial qualifications distinguished
326
The custom of swearing several witnesses at the same time
328
Sequestration of witnesses Origin of the rule
331
Reason for the rule
332
Discretion of the court The early English rule The modern rule
333
Exceptions to the rule
334
Penalty for violating the courts order
335
Refreshing present recollection versus adopting past recollec tion
336
Same Right of opposing counsel and the jury to inspect the memorandum
338
Adopting a past recollection
340
An unorthodox doctrine
342
The right to begin The order of examination
343
2S The examination in chief
345
Same Anticipating the defense
347
The crossexamination Its importance
348
Same Its dangers
350
Same Witness called by court
354
?5 Same Preliminary examinations by the court
355
Impeachment of witnesses
356
Same Party calling witness surprised His right to show inconsistent statements made out of court
358
Impeachment of a witness of the adverse party
360
Same Attacking the character of the witness for truth and veracity
362
Same Haywards case
366
Corroboration of witness Definition
374
Some practical suggestions on the examination of witnesses
381
Same The reexamination
387
Presumptions
396
Burden of proof
405
Admissions
414
Law and fact
420
Demurrers to evidence
429
Facts excluded although logically relevant
435
Character
445
Confessions
453
Hearsay evidence
461
Reported testimony and other declarations under oath
471
Dying declarations
480
Declarations relating to pedigree
489
Declarations relating to matters of public or general interest
496
Ancient documents
510
Declarations against interest by persons since deceased
516
Accountbook entries
528
Declarations made in the regular course of business
535
Declarations bearing upon the physical or mental condition of
542
Declarations relating to or forming part of the res gestae
549
Opinion evidence
560
Real evidence
567
Evidence of experiments
573
Alterations of writings
582
Proof of contents and the best evidence rule
592
The parol evidence rule
600
Competency of witnesses
611
Examination of witnesses
625
Analogous proceedings 33
649
Copyright

Common terms and phrases

Popular passages

Page 174 - No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.
Page 194 - And the said records and judicial proceedings, authenticated as aforesaid, 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 whence the said records are or shall be taken.
Page 174 - The Inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow. To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass...
Page 240 - ... to be a complete and final statement of the whole of the transaction between them.
Page 271 - The general rule, therefore, is, that a lunatic or a person affected with insanity is admissible as a witness if he have sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue...
Page 267 - The true test of the interest of a witness is, that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action.
Page 35 - 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.
Page 262 - Now, there is but one case in which it appears to us that this sort of evidence of intention can properly be admitted, and that is. where the meaning of the testator's words is neither ambiguous nor obscure, and. where the devise is on the face of it perfect and intelligible, but, from some of the circumstances admitted in proof, an ambiguity arises as to which of the two or more things, or which of the two or more persons (each answering the words in the will), the testator intended to express.
Page 86 - War is also required to provide, in the system of observations and reports in charge of the chief signal officer of the army, for such stations, reports and signals as may be found necessary for the benefit of agriculture and commercial interests...
Page 193 - The records and judicial proceedings of the courts of any State or Territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court aunexed. if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate that the said attestation is in due form.

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