COMMENTARIES

ON THE

LAW OF EVIDENCE

IN

CIVIL CASES

BY

BURR W. JONES

of the Wisconsin Bar

Professor of the Law of Evidence in the College of Law of the University

of Wisconsin

Viresque acquirit eundo

-Verg. Aen.

WITH THE LAW APPLICABLE TO EACH SECTION OF THE ORIGINAL
TEXT, REWRITTEN, ENLARGED AND BROUGHT WITH
AUTHORITIES UP TO THE PRESENT DATE

BY

L. HORWITZ

of the San Francisco Bar

VOLUME II

SAN FRANCISCO

BANCROFT-WHITNEY COMPANY

1913

221916

COPYRIGHT, 1913

BY

BANCROFT-WHITNEY COMPANY

TABLE OF CONTENTS.

VOLUME I.

CHAPTER 1. Evidence in General, §§ 1-8.
2. Presumptions, §§ 9-57.

3. Presumptions (Continued), §§ 58–104.
4. Judicial Notice, §§ 105-134.
5. Relevancy, §§ 135-175a.

VOLUME II.

CHAPTER 6.

BURDEN OF PROOF.

176. Burden of Proof-Definition-On Whom Does It Lie.

§ 177. Same-Shifting of the Burden.

§ 179.

Same-Plaintiff Generally has the Burden-Exceptions.

§ 180.

§ 181.

How Affected by Form of Issue-Whether Affirmative or Negative.

Burden as to Particular Facts Lying Peculiarly Within Knowledge

of a Party.

§ 182. Actions Against Common Carriers of Goods.

§ 182a. Same-Telegraph Companies.

§ 183. Actions Against Common Carriers-Of Passengers.

§ 183a. Actions Against Common Carriers-By Others Than Passengers.

§ 183b. Actions Against Common Carriers-In Respect to Livestock.

§ 184. Other Actions for Negligence.

§ 184a. Same-Setting of Fires, etc.

§ 185. Contributory Negligence.

§ 186. Burden in Cases of Bailment-Ordinary Bailees-Warehousemen.

Innkeepers.

§ 187.

§ 188. Insanity-Civil Cases.

§ 188a. Insanity-Criminal Cases.

§ 189. Burden in Probate of Wills-Testamentary Incapacity.

§ 190. Burden of Proof as Between Persons in a Fiduciary Relation.

§ 191. Same-In Respect to Wills-Written by or for Beneficiary.

§ 191a. Same-Wills not Written by Beneficiary-Exclusion of Natural

Objects of Bounty.

§ 192. Burden as to Crimes-Fraud.

(iii)

§ 195.

§ 196.

197.

§ 198.

Same, Continued.

Burden and Weight of Proof Where Crime is in Issue in Civil Cases.

Statutes as to Burden of Proof.

The Right to Begin and Reply.

§ 202. The Rule Does not Exclude Evidence Unless Objection is Made.

§ 203. Qualifications of the Rule-Independent and Collateral Facts.

§ 203a. Same-Illustrations.

§ 204. Same-Corporate Acts.

§ 204a. Same-Illustrations.

205. Appointment and Acts of Public Officers.

§ 205a. Same-Illustrations.

§ 205b. Writings Practically Incapable of Production.

§ 205c. Same-Public Records-Statutes-Books of Corporations.

§ 206. Multiplicity of Documents-General Results.

§ 207.

Parol Proof of Admissions of Self-harming Evidence Concerning Writ

ings-English Rule.

Same-Rule in the United States.

§ 208.

§ 209.

Same-Copies not the Best Evidence-Duplicates.

§ 210.

The General Rule as Applied to Telegrams-Mode of Proof.

Communications by Telephone.

§ 211.

§ 212. Proof of Lost Instruments.

§ 213. Same-Diligence Necessary Before Secondary Evidence is Allowed.

§ 215. Importance of Documents as Affecting Diligence.

§ 215a. Same-Time of Search.

§ 216. Competency of Witnesses to Prove Loss-Hearsay Admissions---

Affidavit.

§ 217. Documents Beyond the Jurisdiction of the Court.

§ 217a. Documents of Which Production cannot be Compelled.

§ 217b. Destruction of Documents-Abstraction to Prevent Production,

§ 218. Effect of Notice to Produce.

§ 219. Object of Notice to Produce-Time of Giving.

§ 219a. Same-Illustrations.

§ 220. Efficacy and Requisites of Notice.

§ 221. Notice to Produce-On Whom Served.

§ 224. Same, Continued.

$ 225. Duplicates-Recorded Deeds.

Effect of the Production of Papers upon Notice.

Proof of the Contents of Lost Documents.

§ 226.

§ 227.

§ 229.

Same-Cases Illustrating the American Rule-The Admissibility of

Circumstantial Evidence Thereunder.

§ 230. Same-Parol Evidence not Allowed When the Law Requires Copies—

Original Always Admissible.

§ 231. Cross-examination of Witnesses as to Writings.

§ 232.

CHAPTER 8.

SUBSTANCE OF ISSUE

Common-law Rules as to Substance of the Issue-Variances.

§ 233. The Modern Rules as to Substance of the Issue-Amendments.

§ 234. Same, Continued.

CHAPTER 9.

ADMISSIONS.

§ 235. Admissions-Confessions-Definitions and Distinctions.

§ 235a. Declarations of a Party in His Own Behalf Inadmissible.

§ 235b. Same-Agents, Employers, Privies, Husband and Wife and Others

in Close Relation.

§ 236. Such Statements are Evidence for the Adverse Party-Why Admis

sions Competent.

§ 237. Admissions by Real and Nominal Parties.

§ 238.

Admissions may be Made by Those not Parties, if Identified in In-

terest.

§ 239. Admissions by Those in Privity of Interest-Definitions of "Privy"----

Mode of Proof-Grantor and Grantee.

§ 241.

§ 242.

Limitations of the Rule-Statements Before Acquisition-Before and

After Alienation.

Admissions of Ancestor Against Heir-Devisor Against Devisee-

Testator Against Executor-Intestate Against Administrator-As-

sured Against Beneficiary-Beneficiary Against Beneficiary.

§ 243. Admissions-Landlord and Tenant-Remainderman and Tenant for

Life-Owner in Fee and Tenant for Years-Mortgagor and Mort-

gagee.

§ 244. Admissions by Former Owners of Personal Property-Under Mort-

gages and Pledges.

245. Same-Real and Personal Property.

§ 246. Same-Strict Rules in Some Jurisdictions.