American Law and Procedure, Band 11

Cover
James Parker Hall, James De Witt Andrews
La Salle Extension University, 1910
 

Ausgewählte Seiten

Inhalt

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
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
Urheberrecht

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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.

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