Modern American Law: A Systematic and Comprehensive Commentary on the Fundamental Principles of American Law and Procedure, Accompanied by Leading Illustrative Cases and Legal Forms

Front Cover
Eugene Allen Gilmore, William Charles Wermuth
Blackstone Institute, 1917 - Law
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Contents

Relations between members of the profession
32
Attorney as a witness
33
Attorney and client
34
The defense or prosecution of those accused of crime
37
Relation of lawyers to the public
39
Fees
41
Contingent fees
43
Conclusion
44
LAWITS ORIGIN NATURE AND DEVELOPMENT PART I
47
The meaning of law
48
The administration of justice
51
The sanction of law
54
CHAPTER II
56
Custom
57
Judicial precedentThe following of precedent
58
The disregarding of precedents
60
The persuasive sources of law in generalLegal reasoning and persuasive precedent
62
Professional opinion
63
Public policy and natural law
65
Legislation
67
Interpretation of statutes
68
Relative contribution of the sources
70
Codification
71
THE SUBJECT MATTER OF
74
The classification of rights continuedPrimary
84
Systems of lawThe common and the civil law
90
The effects of the Norman Conquest
97
SECTION PAGE 35 The Curia Regis or Kings Court
99
The local and ecclesiastical courts
101
General view of the period
102
CHAPTER VI
104
The older modes of trial
105
The inquest
107
The kings peace and the grand jury
109
The writ process
111
The itinerant justices and the court at Westminster
112
Magna Charta
114
The professionalizing of the administration of justice
115
Development of trial by jury
116
Precedent as a source of law
117
Growth of legal doctrine
118
CHAPTER VII
120
The limits of common law jurisdiction
121
The development of the land law
122
The writissuing power
123
The courts of law
125
The legal profession
126
The ossification of the common law
128
The need for elasticity
130
The expansion of the law through the Court of Chancery
132
The equitable jurisdiction of chancery
134
Chancery procedure
136
Development of law in the courts of common law
138
The law merchant and the Court of Admiralty
139
THE MATURITY OF THE
142
CHAPTER IX
155
PART III
167
SECTION pAQE 80 Lines of study
169
ReportsNature
170
ReportsOfficial and unofficial
171
ReportsValueDecision and dicta
173
The study of reported cases
174
Comparison of cases
175
Books of authority
177
SearchbooksDigestsCitators
178
Encyclopedias
179
Textbooks and citators
180
Bibliography
181
CHAPTER I
183
Courts of review
185
Effect of presumption
186
Cases in which a judicial record may be disregarded as an estoppel or as sustaining a lien by con structive notice or when offered in evidence in anot...
187
FraudCollusionWant of hearing
190
What courts are superior and what inferior
191
Instances of superior and inferior courts
192
General and special
193
Terms and sessions
194
Judicial legislative and executive power
195
The relation of the courts to the executive depart mentDiscretionary and ministerial functions
196
Jurisdiction
197
Kinds of jurisdiction
198
Facts strictly jurisdictional and those quasijurisdic tional
199
Inception of jurisdiction
200
Jurisdiction in rem and in personam
202
Proceedings affecting a subject matter or status
204
SECTION PAGE 19 Territorial limits on jurisdiction
205
Exclusive and concurrent jurisdiction
206
Jurisdiction by consent
207
Ancillary jurisdiction
208
Executive and political questions
209
The mandatory or strict record and the statutory record
210
The mandatory record
211
Loss of jurisdiction by extrajudicial judgment
213
Jurisdiction and venue
214
Concurrent and conflicting jurisdiction
215
Stare decisis and judicial comity
218
CHAPTER II
220
In what courts the judicial power must be vested
221
General rules as to jurisdiction and powers
222
Exclusive jurisdiction
224
Concurrent state and federal jurisdiction
229
Quasiexclusive power of the court first taking jur isdiction
230
Personal actions against prior custodian
232
Habeas corpus in state and federal courts
233
Following state laws and decisions in federal courts
237
Conformity with local practice
240
The common law in the federal courts civil cases
242
The federal law of evidence
243
Equity in the federal courts
244
Equity jurisdiction when there is a common law remedy
245
THE VARIOUS UNITED STATES COURTS AND THEIR JURISDICTION SECTION PAGE 46 The Supreme Court
247
Organization of the Supreme Court
248
Its original jurisdiction
249
Appellate jurisdiction over state courts
252
Appellate jurisdiction over the district court
255
Appellate jurisdiction on constitutional or treaty questions
256
Indirect review of district court by Supreme Court mandamus
258
Direct review of final decrees in prize cases
261
Review of decisions of the court of appeals by cer tiorari
262
Certifying questions to the Supreme Court
263
Review over Porto Rico courts
264
Review over courts of Alaska Territory
265
Review over District of Columbia courts
266
Review over Court of Commerce
267
The United States Circuit Court of Appeals 65 Organization and general jurisdiction
268
Review over district courts
269
When decision final and when not
270
Appeals from injunction and receiver orders
271
Review of proceedings in bankruptcy
272
Review over federal courts of China and Alaska
273
SECTION PAGE 72 Organization and history
274
Jurisdiction of the court of claims
275
Concurrent jurisdiction of the district court
277
The Commerce Court Abolished 76 Organization and jurisdiction
278
The District Court 77 Organization and history
280
The former circuit court
281
The district court jurisdiction
282
Civil suits brought by the United States or its of ficers
283
Civil suits arising under the federal Constitution laws or treaties
284
Civil suits between citizens of different states
285
Suits on assigned contracts
287
Civil suits between alien states or citizens and state citizens
288
Slave trade
290
Suits under revenue customs tonnage postal laws
291
Interstate commerce suits
293
Suits on customs debentures
294
Suits for damages against persons enforcing the revenue or civil rights laws
295
Suits by aliens for torts against the law of nations
297
Suits against foreign consuls and viceconsuls
298
Jurisdiction concurrent with the Court of Claims
301
Habeas corpus and appeal in immigration and Chinese exclusion cases
302
Suits under antitrust laws
303
Suits relating to Indian allotment of land
304
Partition suits where the United States is an owner in common
305
Jurisdiction over the Hot Springs reservation Arkansas
306
Amount in controversy
308
Ancillary jurisdiction
309
Territorial and Insular Courts 112 Nature and organization of territorial courts
310
Courts of Hawaii
313
Courts of the Philippine Islands
314
The courts of Porto Rico
315
The District of Columbia courts
316
Consular coxirts
318
The United States court for China
321
Military and Naval Courts 120 Military provisional courts
322
Removal of Cases from State Courts to the District Court 122 History of removal acts
324
What cases now removable
326
Prejudice or local influence
327
SECTION PAGE 126 Removal of civil rights cases
328
Removal of suits by aliens against federal officers
329
CHAPTER IV
331
Probate courts
332
Justices of the peace and justices courts
333
Liability of justice of the peace
335
Municipal courts
336
Courts of the Indian tribes and nations
337
CHAPTER V
340
The English courtsthe House of Lords
341
Judicial power of the House of Commons
342
Criminal courtsCourts of summary jurisdiction
351
Courts of special session
352
The Court of Criminal Appeal
353
Local and naval courts
354
The Court of Admiralty of the Cinque Ports
355
Colonial courts of admiralty
356
Equity jurisdiction of the county court
357
County court jurisdiction under Bills of Exchange Act
358
Courts of escheat
359
The Court of Claims
360
Durham
361
The judicial commissions
362
PART I
363
PART II
376
SECTION PAGE 16 Duration of offersReasonable time
379
Same subjectOptions
380
Same subjectDeathInsanity
381
Revocation of offers
382
Continuing offers
383
Counter offerInquiryQuotation
384
Offers at auction
385
Knowledge of terms of offer
386
Agreements made by post
387
Same subjectCases considered
388
Meeting of minds
390
Rewards
391
Same subjectSilence
392
Who may accept offer
393
Cross offers
394
CHAPTER III
396
Mistake of one party only
401
Mistake in motive
402
Mistake of law
403
Expressions of opinion
407
MisrepresentationConditionsWarranties
408
Representation must be acted upon
409
Effect of misrepresentation
410
The effect of fraud
414
Duress
415
Undue influence
416
Right to rescind for undue influence
419
CHAPTER IV
421
Contracts under seal and specialties
422
Same subjectDeeds bonds records
423
Same subjectDelivery and form
425
Same subjectStatutory changes
426
CHAPTER V
428
Consideration distinguished from motive
429
Valuable consideration
430
Valuable consideration need not be adequate
431
Good consideration
432
Moral consideration
433
Unreal considerations
434
Forbearance to sue
436
Compromise
438
Accord and satisfaction
441
Legal duties as consideration
442
Contractual obligations as consideration
443
Promises to third persons
444
Mutual promises
445
Present and past considerations
446
SECTION PAGE 80 Subscription agreements
448
Failure of consideration
450
Presumption of consideration
451
CHAPTER VI
453
Construction of the fourth section of the Statute of Frauds
454
Nature of the contracts in the fourth section Clause 1Executor
455
Same subjectClause 3Marriage
457
Same subjectClause 5Agreement not to be per formed within the space of one year from the making thereof
460
Executed contractsPart performance
461
Provisions of the seventeenth section
463
Satisfaction of the requirements of the Statute of FraudsMemorandum
465
CHAPTER VII
469
Married women
473
Persons mentally deficient
474
Aliens
475
Professions
477
CHAPTER VIII
479
Contracts illegal by common law and by statute
480
Same subjectWagers
481
Agreements contrary to public policy
484
Contracts in restraint of trade
488
Contracts restraining marriage
490
Fiduciary relations
491
Effect of illegalityIn general
492
Effect of promises made regarding past illegal trans actions
493
Effect of intention
494
Partial illegality
495
Effect on illegality of change of time or place
496
THE OPERATION OF CONTRACT CHAPTER IX
497
Same subjectApparent exceptions
498
Duty of third parties
499
Same subjectNew York rule
500
Same subjectLimitations to the New York rule
501
Same subjectRelease
502
CHAPTER X
503
SECTION PAGE 127 Assignment of rights
504
Novation
505
Defenses
506
What is assignable
507
Form
508
Assignment of future earnings
509
Partial assignments
510
Priority of assignments
511
Assignment and negotiability distinguished
512
Assignment by operation of law
513
CHAPTER XI
515
Joint contracts
516
Several contracts
518
PART IV
521
Same subjectProof of the document
524
SECTION PAGE 149 Same subjectFact of agreement
525
Same subjectTerms of the contract
526
Rules of construction
530
Same subjectSubsidiary rules
531
Rules as to penalties and liquidated damages
532
PART V
535
Dependent promises
536
Express conditions
538
Conditions implied in law
539
Performance of express and implied conditions
540
Conditions concurrent
541
Conditions subsequent
542
Pleading and proof
544
Representations and warranties
546
CHAPTER XIV
550
Rules on express conditions
551
Performance dependent on approval
553
Promises to pay
555
Rules on conditions implied in law
556
Act on one side requiring time
557
SECTION PAGE 175 Where only the time for performance of one act is definite
558
Breach of condition
559
Rules as to time
560
Instalment contracts
562
Renunciation of contract
564
CHAPTER XV
569
Subsequent impossibility
570
Same subjectExceptions
572
Impossibility of performance created by a party
574
Impossibility by acts or change of law
576
Existence of subject matter and place
580
Personal incapacity
584
Scope of impossibility
586
Alternative contracts
587
PART VI
589
Discharge by agreement
590
Discharge by substituted agreement
591
Release
592
Novation
593
Form
594
Provisions for discharge
595
CHAPTER XVII
598
Tender
600
Strict and substantial performance
601
CHAPTER XVIII
604
Alteration of written instrument
605
Discharge by failure of consideration
606
Discharge by breach going to the essence and by re pudiation
607
Marriage
608
CHAPTER XIX
609
Arbitration and award
611
Discharge by operation of law
612
Bankruptcy
613
CHAPTER XX
614
Specific performance
615
Bibliography
616
Leading Illustrative Cases Table of Contents
651
LEADING ILLUSTRATIVE CASES
657
PART II
667
Walker et al v Cronin
815
CHAPTER X
824
Vulcan Iron Works Co v Electric Magnetic Gold Min
832
CHAPTER XIV
837
PART VI
852
CHAPTER XVII
858
DISCHARGE BY OPERATION OF
861
Index
867

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Common terms and phrases

Popular passages

Page 115 - To no one will we sell, to no one will we refuse or delay, right or justice.
Page 773 - ... or upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith or some other person thereunto...
Page 45 - Of law there can be no less acknowledged, than that her seat is the bosom of God, her voice the harmony of the world ; all things in heaven and earth do her homage, the very least as feeling her care, and the greatest as not exempted from her power...
Page 115 - No freeman shall be arrested or detained in prison, or deprived of his freehold, or outlawed, or banished, or in any way molested, and we will not set forth against him, nor send against him, unless by the lawful judgment of his peers and by the law of the land.
Page 253 - Where is drawn in question the validity of a treaty or statute of or an authority exercised under the United States, and the decision is against their validity, OR where is drawn in question the validity of a statute of or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity...
Page 38 - From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end.
Page 301 - States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable...
Page 292 - In suits brought for the infringement of letters patent the district courts of the United States shall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership, or corporation, shall have committed acts of infringement and have a regular and established place of business.
Page 817 - ... the law operating on the act of the parties creates the duty, establishes a privity, and implies the promise and obligation on which the action is founded.
Page 223 - That all the before-mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs, not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.

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