American Law and Procedure, Band 11

James Parker Hall, James De Witt Andrews

La Salle Extension University, 1910

Inhalt

• EVIDENCE CHAPTER I: 1
• Relation of evidence to pleading: 2
• Evidence limited by the pleadings 4 Evidence limited by admissions in open court: 3
• Evidence is matter of fact presented to judicial tribunals 6 Difference between evidence and argument: 4
• Direct and circumstantial evidence: 6
• Degree of difference between circumstantial and direct evidence 1 2 3 3 4 6 7 8 10 Strength of circumstantial evidence: 8
• Limitation of evidence by rules 10 12 13 14 Rules of evidence developed with the jury system: 10
• Object of rules of evidence to save jury from error: 12
• Value of knowledge of rules of evidence 10: 13
• Relevance of Evidence 15 Distinction between relevance and competence: 15
• Illustration: 16
• Degree of relevance requisite: 17
• Further illustrations: 18
• Prejudicial evidence: 19
• Illustrations: 20
• Evidence of similar facts: 21
• Illustrations: 22
• Evidence of similar facts in criminal cases 15: 23
• Evidence of similar acts admissible to show intent or 25 motive: 24
• Evidence of similar acts admissible in case of a common scheme: 25
• Evidence of similar occurrences admissible to show notice: 26
• Admissability and weight: 27
• CHAPTER III: 34
• Illustration: 40
• Admissions of predecessors in title: 46
• Entries and declarations against interest: 48
• Authentication of entries in course of business: 54
• Declarations must be free from bias: 66
• 41: 67
• Contents of ancient documents: 68
• Equitable execution: 73
• Exclamations and statements accompanying acts: 74
• CHAPTER IV: 80
• 100 Proof of execution of ancient documents: 87
• 102 Evidence as to character of transaction: 89
• 103 Oral declarations not admissible to add terms to a writing: 90
• 104 Merger of negotiations in executed contracts: 91
• 105 Evidence of trade custom: 92
• 106 Custom must not be inconsistent with writing: 93
• 107 Oral declarations admissible as to collateral matters: 94
• 108 Oral declarations admissible regarding contracts only partly written: 95
• 109 Oral declarations in case of fraud or mistake: 96
• 110 No reformation in case of wills: 97
• 111 Oral declarations in regard to public records: 98
• SECTION 4: 99
• 114 Construction of wills: 100
• 115 Wills sometimes not open to interpretation by extrinsic evidence: 101
• CHAPTER V: 104
• 118 Distinction between fact and opinion: 105
• 119 Opinion admissible in matters otherwise difficult to de scribe: 106
• 120 Opinion evidence from unskilled witnesses: 107
• 121 Opinions in matters involving special skill or experience: 108
• In England: 109
• In the United States: 110
• 124 Hypothetical questions: 111
• 125 Statement of facts in hypothetical questions: 112
• SECTION 2: 114
• 127 Requisites of real evidence: 115
• Evidence Incompetent on Account of Character or Circum stances of Parties 128 Parties as witnesses in their own behalf: 116
• 130 Testimony of husband and wife: 118
• Suits between spouses: 119
• 133 Physicians nd clergymen: 120
• 134 Proposals of compromise: 122
• CHAPTER VI: 124
• 137 Privilege of witness in not answering particular questions: 125
• Subpoena: 126
• 140 Subpoena duces tecum: 127
• SECTION 2: 128
• Defense and subsequent proceedings: 129
• 146 Judge decides question of admissibility of evidence: 130
• SECTION 3: 131
• When allowed: 132
• 150 Witness must state facts not conclusions: 133
• 151 Refreshing recollection: 135
• SECTION 4: 136
• 154 Scope of crossexamination: 138
• Leading questions: 139
• 157 Same continued: 140
• 158 Same continued: 141
• SECTION 5: 142
• CHAPTER VII: 144
• Generally for court: 145
• 164 Number and kinds of witnesses required in certain cases: 146
• 166 Judicial notice: 147
• By statute: 148
• 169 Setting aside verdict: 149
• PLEADING Introduction 1 General description of pleading: 151
• Pleadings necessary in all cases: 152
• The three systems of pleading: 153
• How treated: 154
• PART I: 155
• A prima facie case sufficient: 156
• What constitutes a prima facie case: 157
• Traverses Pleas in confession and avoidance: 158
• Demurrer by defendant: 159
• Effect of traverse confession and avoidance or demurrer in ending the pleadings Issues of fact and of law: 160
• plea: 162
• Their names: 163
• CHAPTER II: 165
• Classification of actions Real actions: 166
• SECTION 1: 167
• Origin of action of ejectment: 168
• Introduction of fictions in ejectment: 169
• Explained by its use in ejectment: 170
• Broadening its scope unwise: 172
• Broadening its scope erroneous: 174
• General issue and subsequent pleadings in ejectment: 175
• SECTION 2: 176
• Contract actions continued: 178
• Action of covenant: 179
• Same continued: 180
• Debt on a specialty: 181
• Debt on simple contract: 182
• Affirmative defences: 183
• Result of the decisions: 184
• Statute of limitations Setoff: 185
• Special assumpsit: 187
• Pleading statute of frauds: 188
• Pleading defence which show contract voidable only: 189
• Its origin: 190
• Pleadings: 192
• SECTION 3: 194
• Violation of possession: 195
• Declaration in trespass: 197
• 46: 203
• Judicial notice: 212
• Anticipatory allegations: 221
• 67: 227
• Commencement of pleadings: 232
• Conclusion of pleadings: 233
• Allegations of place: 234
• Allegations of time: 236
• Duplicity: 237
• Multiple counts and pleas: 238
• General issues and replication de injuria: 239
• Limitations upon use: 240
• Argumentativeness: 242
• Failure to use general issue when possible: 243
• Misjoinder of actions: 244
• Misjoinder and nonjoinder of parties: 245
• Incapacity of parties: 246
• Misnomer Another action pending: 247
• Dilatory defect not appearing in pleading: 248
• Demurrers in general Speaking demurrers: 249
• Demurrer opens the record: 250
• Defects in form: 251
• Finality of judgment on demurrer: 252
• Motions: 253
• Arrest of judgment: 254
• Illustrations: 255
• Judgment non obstante veredicto: 256
• Illustration: 257
• Further illustration: 258
• 102 Different effect of motions arresting and giving judgment: 259
• 103 Objections to pleadings in appellate courts: 260
• SECTION 6: 261
• Express aider: 262
• Curing by verdict: 263
• Illustration and comment: 264
• Curing by amendment: 265
• 110 Statutes of efailsjo Later liberality of amendment: 267
• Pleading wholly bad in substance: 268
• CHAPTER IV: 270
• 115 Other rules concerning dilatory pleas: 272
• PART II: 273
• Interrogating part: 274
• 119 The parts of the bill: 275
• 120 Same continued: 276
• Prayers for relief and process: 277
• 122 Statement of the cause of action: 278
• In general: 280
• Separate actions arising from single act: 281
• SECTION 2: 282
• 127 Answer as a pleading: 283
• 128 Same continued: 284
• SECTION 3: 285
• 130 Pure negative and anomalous pleas: 286
• 132 Use of anomalous pleas: 287
• 133 Answers in support of pleas: 288
• Negative and anomalous pleas: 289
• 135 Answer overruling plea: 290
• 136 Other rules about pleas: 292
• SECTION 4: 293
• Answers and pleas: 294
• 139 Origin and use of demurrers: 295
• 141 Other rules about demurrers: 296
• SECTION 5: 298
• 143 Pure bills of discovery: 299
• 145 Modern statutory changes affecting discovery: 300
• 146 Same continued: 302
• PART III: 303
• 148 Union of law and equity: 305
• Affects procedure only not rights: 306
• 151 Doctrine of theory of a pleading: 307
• 152 Joinder of causes of action: 308
• 153 Changes in number of pleadings: 310
• Effect of this change: 311
• 155 New names of pleadings 312: 312
• 158 Motions for judgment: 313
• CHAPTER I: 319
• SECTION 5: 322
• Illustration: 325
• CHAPTER II: 331
• When process should run in name of the people: 332
• Return day of summons: 333
• SECTION 2: 334
• Actual service of summons at common law: 335
• Form of actual service under modern practice: 336
• Service of summons beyond limits of jurisdiction is inef fective: 337
• Same continued: 338
• Substituted or constructive service on residents: 339
• Substituted service upon coporations: 340
• Copy left with person adversely interested in suit: 341
• Substituted service on residents by publication and mail ing notice: 342
• Substituted service by tacking notice on defendants door: 343
• SECTION 3: 344
• Essentials of jurisdiction to affect rights of nonresident not served with process in the state: 345
• Proceedings quasi in rem: 347
• Seizure of property before judgment necessary: 348
• Essential nature of proceeding: 349
• Attachment of claim due a nonresident creditor: 350
• Foreclosure of mortgages in courts of equity: 351
• Service of Process in Proceedings in Rem and Quasi in Rem 43 By publication: 352
• By serving agent of nonresident within state: 353
• Testing Sufficiency of Service 46 Motion to quash: 354
• During term when judgment entered: 355
• CHAPTER III: 357
• Serving the pleadings: 358
• Effect of death of party not a sole plaintiff or defendant: 360
• The facts: 362
• The law and theory of the case: 363
• Function of court and jury: 364
• Impanelling the jury: 365
• Forms of challenge of jurors: 366
• Opening statements to jury: 367
• Introduction of evidence Requests for direction of verdict: 368
• Written instructions on law only: 369
• Illustration of latter practice: 370
• Verdict and judgment: 371
• Grounds for new trial: 372
• Procedure respecting motion for new trial: 373
• CHAPTER IV: 374
• Record of lower court: 377
• LEGAL ETHICS: 383
• 13: 389
• Upholding the honor of the profession: 396
• Justifiable and unjustifiable litigations: 397
• 101 The parol evidence rule: 403
• Practice: 413

Beliebte Passagen

Seite 388 - WITH OPPOSITE PARTY A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.

Seite 395 - The most worthy and effective advertisement possible, even for a young lawyer, and especially with his brother lawyers, is the establishment of a well-merited reputation for professional capacity and fidelity to trust. This cannot be forced, but must be the outcome of character and conduct.

Seite 384 - No code or set of rules can be framed, which will particularize all the duties of the lawyer in the varying phases of litigation or in all the relations of professional life. The following canons of ethics are adopted by the American Bar Association as a general guide, yet the enumeration of particular duties should not be construed as a denial of the existence of others equally imperative, though not specifically mentioned.

Seite 390 - The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicane. He must obey his own conscience and not that of his client.

Seite 397 - The lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or to injure the opposite party or to work oppression or wrong.

Seite 390 - In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is...

Seite 391 - ... allowed to influence counsel in their conduct and demeanor toward each other or toward suitors in the case. All personalities between counsel should be scrupulously avoided. In the trial of a cause it is Indecent to allude to the personal history or the personal peculiarities and idiosyncrasies of counsel on the other side. Personal colloquies between counsel which cause delay and promote unseemly wrangling should also be carefully avoided.

Seite 389 - Contingent fees where sanctioned by law should be under the supervision of the Court in order that clients may be protected from unjust charges.

Seite 387 - When lawyers jointly associated in a cause cannot agree as to any matter vital to the interest of the client, the conflict of opinion should be frankly stated to him for his final determination.

Seite 383 - In America, where the stability of Courts and of all departments of government rests upon the approval of the people, it is peculiarly essential that the system for establishing and dispensing Justice be developed to a high point of efficiency and so maintained that the public shall have absolute confidence in the integrity and impartiality of its administration.

Bibliografische Informationen

• Titel: American Law and Procedure, Band 11; American Law and Procedure, James Parker Hall
• Herausgeber: James Parker Hall, James De Witt Andrews
• Mitwirkende Personen: La Salle Extension University. Department of Law
• Verlag: La Salle Extension University, 1910