Commentaries on the Law of Evidence in Civil Cases, Volume 2

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Contents

Contributory Negligence
72
Innkeepers
86
Burden in Probate of WillsTestamentary Incapacity
95
Burden of Proof as Between Persons in a Fiduciary Relation
104
SameIn Respect to WillsWritten by or for Beneficiary
111
191a SameWills not Written by BeneficiaryExclusion of Natural
117
Burden as to CrimesFraud
126
Burden in Quo Warranto Proceedings
131
Burden as to Statutes of Limitation
136
Burden and Weight of Proof Where Crime is in Issue in Civil Cases
139
Statutes as to Burden of Proof
147
The Right to Begin and Reply
157
Same Continued
160
CHAPTER 7
164
Rule as to Best Evidence
165
Primary and Secondary Evidence
173
200a Application of the RuleIllustrations 201 SamePrivate Writings
179
201a SameIllustrations
180
The Rule Does not Exclude Evidence Unless Objection is Made
187
Qualifications of the RuleIndependent and Collateral Facts
192
203a SámeIllustrations 204 SameCorporate Acts
199
204a SameIllustrations 205 Appointment and Acts of Public Officers 205a SameIllustrations
205
205b Writings Practically Incapable of Production 205c SamePublic RecordsStatutesBooks of Corporations 206 Multiplicity of DocumentsGeneral ...
206
Parol Proof of Admissions of Selfharming Evidence Concerning Writ ingsEnglish Rule
207
SameRule in the United States
214
SameCopies not the Best EvidenceDuplicates 210 The General Rule as Applied to TelegramsMode of Proof
226
Communications by Telephone
235
Proof of Lost Instruments
243
SameDeclarations of Former Owners of Choses in Action
247
Declarations of Persons Having a Joint Interest Partners
248
SameStatutes of Limitations as Affect Admissions of Partners
249
Admissions After Dissolution of Partnership
250
Partnership to be Proved Before Admissions are Received
251
SameDiligence Necessary Before Secondary Evidence is Allowed 214 SameFurther Illustrations
253
Importance of Documents as Affecting Diligence
259
215a SameTime of Search
262
Competency of Witnesses to Prove LossHearsay Admissions Affidavit
263
Documents Beyond the Jurisdiction of the Court
265
217a Documents of Which Production cannot be Compelled 217b Destruction of DocumentsAbstraction to Prevent Production
269
Effect of Notice to Produce
271
Object of Notice to ProduceTime of Giving
275
219a SameIllustrations
278
Efficacy and Requisites of Notice
279
Qualification as to Mere General RecitalsOther Qualifications of
283
Notice to ProduceOn Whom Served
284
Effect of Nonproduction After Notice
288
When Notice to Produce is not Necessary
292
Same Continued
296
Proof of the Contents of Lost Documents
306
Evidence II1
311
SameCases Illustrating the American RuleThe Admissibility
314
CHAPTER 8
324
234 Same Continued
341
CHAPTER 9
347
SameReal and Personal Property
401
252a Admissions by Coparties 253 Declarations by Persons Having a Mere Community of Interest
429
Declarations by WrongdoersConspiracy
435
Declarations of Agents
438
SameEffect of Such Declarations
444
256a SameAdmissions of Public Agents
447
256b SameFraudDeathSpecial and Subagents 256c SameAdmissions of Architects and Building Contractors Brokers and Factors Carriers and Their ...
450
256d SameAdmissions of Deputy SheriffsEmployees and Servants Masters Pilots and Captains of Boats
451
Admissions by Attorneys
453
257a SameIllustrations of Efficiency of Admissions
456
SameCasual StatementsInformal Admissions 259 SameDifferent Actions or Trials
459
Admissions of Husband and Wife
461
SamePower to Make AdmissionsHow Inferred
468
SameIn Actions for Divorce
469
Admissions by Persons Referred to for Information 8 264 Effect of Consenting to Pay on Condition an Affidavit is Made
477
Admissions by Interpreters
479
Declarations of Persons Acting in a Representative Capacity 267 Admissions by Public Corporations
484
Admissions by Private Corporations
490
Written Admissions Letters and Telegrams 270 Other Written Admissions
496
270a SameCorporate Records
497
SamePartnership Books
499
27la SameOrdinary Account Books
500
Admissions in Pleadings
502
Same Continued
511
Admissions in PleadingsWhen Conclusive 275 Estoppel by ConductIllustrations
519
SameCorporationsIlustrations
522
276a SameCopartnersHusband and Wife
526
SameErection of ImprovementsBoundary Lines 279 SameWant of Knowledge by Injured PartyThe Act must be Calculated to Mislead and must Act...
539
Who may Claim Benefit of Estoppel
542
Estoppel by Deed 282 SameTitle Subsequently AcquiredMutuality and Privity
547
As Between Landlord and Tenant
561
As Between Others Holding Subordinate TitleBailees etc 286 Acceptance of Bills of Exchange
571
Admissions Implied by Conduct
572
SameRepairing Defective Machinery or Highways
577
Hearsay may Relate to What is Done or Written or Printed as well as to What is Spoken
640
Hearsay may Include Things Stated Under Oath or Against Interest
644
Statements Apparently Hearsay may be Original Evidence
646
Matters of Public and General Interest
653
Distinction Between the Public and Merely General Rights
657
Reputation as to Private Boundaries Excluded in England 304 Relaxation of the Rule in the United States
661
304a SamePrerequisites to the Admission of Evidence of Reputation in Cases of Private Boundaries
665
Declarations as to Particular Facts Concerning Private Boundaries not Admissible
667
Declarations of Surveyors and Chainmen
672
Maps Relating to Subjects of Public or General Interest
674
Ancient Documents in Support of Ancient PossessionEffect of ReL
678
308a SameCopies of Ancient Documents
687
SameDocuments to come from the Proper Custody
694
Declarations must have Been Made Before the Controversy Arose
698
Same Meaning of the RuleLis Mota
701
Declarations as to PedigreeReason for the Exception
703
SameDeclarants RelationshipHow ProvedParticular Facts
712
Are the Declarations Limited to Cases Where Pedigree is the Direct Subject of the Suit
722
Acts and Conduct of Relatives Admissible as well as Declarations
727
Written Declarations
728
SameFamily Recognition of Writings and Records
729
Weight of Such Testimony
732
Declarations Only Admissible if Declarant Dead or Unavailable
735
Entries in the Course of Business by Deceased Persons 320 SamePrinciple Extended to Declarations by Persons Still Living
745
Recollection of the Fact by the Person Making the Entry 322 Entries by a Party Himself
749
323 Declarations of Deceased Persons Against InterestIn General AbsenteesThose Physically or Mentally Incapacitated
752
SameThe Declaration must be Against Pecuniary or Proprietary Interest
756
Sufficient if the Entries are Prima Facie Against Interest
759
SameEvidence of Collateral Facts
761
Rule When the Declaration is Made by an Agent
763
Declarant Need not have Actual Knowledge of the Transaction
765
328a Absence of Probable Motive to Falsify
766
Such Declarations Inadmissible to prove Contracts
767
General Rules on the Subject 7
769
Dying Declarations
771
Limited to Cases of Homicide and When Made in Expectation of Impending Death
772
Declarant must have Been Competent to Testify
775
Declarations must be Confined to the Homicide 335 Form of the DeclarationGeneral Rules
778
Evidence of Witnesses Given in Former Action or on Former Trial 337 Exact Identity of the Parties not Necessary
781
Parties Should be Substantially the Same or in Privity
783
Form of Proceeding may be Different 340 The Opportunity of Crossexamination on the Former Trial
788
Death of the Former WitnessRelaxation of the Rule
790
342a Same Continued
798
342b SameIn Criminal Cases
801
CHAPTER 11
808
Mere Narrations not Admissible
814
Cases in which the Rule is Relaxed
817
Time Through which Res Gestae may Extend
823
The Statements or Acts must be part of a Transaction
825
Declarations as to Bodily Feelings
828
349a Same Continued
832
Declarations Showing Motive or Intent
834
Declarations by Possessor of Personal Property
836
SamePossession must be Shown
843
Declarations as to Boundary Lines
846
Declarations of Agents
848
356a SameFurther Illustrations
850
356b Prerequisites to Admission of Such Declarations 357 Declarations by Agents of Corporations
853
General Rule and Summary of the Chapter
860
CHAPTER 12
862
Exceptions to the General RuleOpinions of Ordinary Witnesses
866
SameIdentity
871
SameSpeed of Railroad TrainsOf AutomobilesOf Horses
874
SameValues
877
SameSanity
880
SameAs to Sanity in Will Cases
885
SameIn GeneralConclusion
887
Expert TestimonyGrounds of Admission
890
SameProof of Qualification of Experts 369 SameA Preliminary Question for the Court
896
Mode of ExaminationHypothetical Questions 371 Hypothetical Questions to be Based upon Proof 372 The Expert not to Decide Questions of Faet
906
Same Continued
911
Opinions Based upon Testimony Heard or Read by the Expert
914
Opinions Based upon Personal Knowledge 376 Opinions Based upon HearsayConclusions of Law etc 377 Form of Hypothetical Questions
925
Physicians and Surgeons
929
Same Testimony of Physicians and Others as to Poisons
935
Mechanics and Machinists as Experts
936
Expert Testimony as to Railroads and Their Management
940
Experts in Agriculture
943
Experts in Insurance Matters
945
Illustrations of Expert Testimony by Surveyors and Engineers 385 Opinions of Nautical
951
Miscellaneous Illustrations
952
Expert Testimony as to Values
954
Opinions as to Amount of Damages
961
Crossexamination of ExpertsLatitude Allowed
965
Same Continued
971
Depositions 8 634701
995
TABLE OF CASES
1002
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Common terms and phrases

Popular passages

Page 534 - wilfully,' however, in that rule, we must understand, if not that the party represents that to be true which he knows to be untrue, at least that he means his representation to be acted upon, and that it is acted upon, accordingly ; and if, whatever a man's real intention may be, he so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it, and did act upon it as true, the party making the representation would be...
Page 44 - There must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.
Page 526 - The rule of law is clear, that where one, by his words or conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things, as existing at the, same time...
Page 535 - The vital principle is that he who by his language or conduct leads another to do what he would not otherwise have done, shall not subject such person to loss or injury by disappointing the expectations upon which he acted.
Page 507 - But an allegation of new matter in the answer, to which a reply is not required, or of new matter in a reply, is to be deemed controverted by the adverse party, by traverse or avoidance, as the case requires.
Page 500 - When part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing, which is necessary to make it understood, may also be given in evidence.
Page 32 - That it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants.
Page 410 - Enactments or either of them, so as to be chargeable in respect or by reason only of any written Acknowledgment or Promise made and signed by any other or others of them...
Page 535 - Coke's definition, like his times, is rough, that an estoppel is where a man is concluded by his own act or acceptance to say the truth...
Page 21 - The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the burden of proving that fact shall lie on any particular person...

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