The Law of Evidence in Civil Cases, Volume 1

Burr W. Jones

Bancroft-Whitney, 1896 - Civil procedure - 2198 pages

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Table of Contents

EVIDENCE IN GENERAL	1

SameRequisites Certificates of acknowledgment	3

EXAMINATION OF WITNESSES	11

PRESUMPTIONS	14

Same Federal courts 31 The rule as to inferior courts 32 Same Courts of probate 33 SameAs to judgments in other states 34 Same Collateral and dire...	15

n land	19

810	22

Witnesses not compelled to criminate themselves	32

Mode of proving former testimony Refreshing mem	346

Proof of intent Motives and belief	347

coracoscosocos	348

Evidence made relevant by that of the adverse party	349

SameRebuttal or explanation of irrelevant testimony	351

General rules as to relevancy	353

Province of judge and jury	358

361 Opinions in general inadmissible	361

891 No privilege if testimony cannot be used to convict	38

818	40

Mistake	41

Presumptions as to the mailing and receipt of letters	46

Presumption that men know the consequences of their	50

767	70

821	90

Same Telegrams Weight of the presumption	95

Presumptions of regularity in acts of private corpora tions	99

SameGeneral scope of the rule	103

Miscellaneous presumptions from the general course of business	104

Existence of governments Domestic and foreign	105

Foreign flags and seals State of war or peace	106

Territorial extent and subdivisions CountiesCities	107

CHAPTER III	108

sumption	109

Mere lapse of time less than twenty years not enough	135

Facts apparently collateral may become relevant	141

SameKnowledgeIntent	142

SameProof of other crimes than the one in issue	143

Same How limited	144

Collateral facts to show good faithKnowledge	145

Facts apparently collateral to repel the inference of accident	146

Character When relevant	147

Qualifications of the ruleLibel and slander	148

SameChanges in possession Possession by tenant	164

The presumption How rebutted	165

SameDisabilitiesNature of estate What facts are relevant	166

Presumptions as to the law of sister states 82 SameLimitations 83 SameForeign	168

Contracts presumed to be legal	174

Presumptions as to marriage	175

Cohabitation and reputation to concur Weight of pre	178

sumption	179

Presumption of marriage in civil and criminal issues	180

No presumption arising from illicit cohabitation	182

Other presumptions growing out of the marriage rela tion	183

SameOf coercion by the husband 91 SameNature and limits of the presumption	190

Presumptions of legitimacy	191

SameHow rebutted	194

SameConclusive if sexual intercourse between hus band and wife is shown 95 Relevant facts when sexual intercourse between husband and wife is n...	196

The husband or wife not allowed to deny sexual inter course	197

Sealed	200

SameTestamentary capacity Domicil Torts 899 Presumptions as to identity	202

Conflicting presumptions That of innocence prevails over other presumptions 101 SamePresumption of innocence of a party overcomes the presum...	207

cascoscos coccos coscoo	209

tions	211

State and subordinate officers 110 OfficersNotaries public 111 Official signatures and seals 112 Law of the forum International lawForeign trea ties ...	215

Effect of notice to produce	218

Object of notice to produceTime of giving	219

853 ImpeachmentExpressions of opinion Of hostility	243

ဘာဘာ	250

Admissions after dissolution of partnership	251

Partnership to be proved before admissions are re ceived	252

Admissions by joint contractors not partners	253

Declarations by persons having a mere community	254

Declarations by wrongdoersConspiracy	255

Courts Officers of the courtRecords Terms	256

SameEffect of such declarations	257

Admissions by attorneys	258

Same Effect of such admissions	259

Matters of history	260

SameDifferent actions or trials	261

Admissions of husband and wife	262

Facts relating to the currency	263

Geographical features	264

Admissions by persons referred	265

Effect of consenting to pay on condition an affidavit	266

Surveys Plats and streets	267

Declarations by persons acting in representative capac	268

Matters of science and	269

Admissions by private corporatious	270

Written admissions Letters	271

Invariable course of nature	272

Same Partnership books	273

Meaning of words and phrasesThe scriptures	274

Same continued	275

Abbreviations	276

Methods and customs of business	277

Facts not within the memory of the judge	278

SameWhere admissions are in good faith and by mistake	279

Facts of which jurors take judicial notice	280

Same The act must be calculated to mislead and act ually mislead	281

CHAPTER V	282

Proof of good character 157 Proof of financial standing Exemplary damages 158 Same Compensatory damages 159 SameFinancial standing of plai...	283

SameTitle subsequently acquired Mutuality	284

The whole statement or admission to be received	295

SameWritten admissions	296

Weight of admissions	297

Same continued	298

DefinitionHearsay evidenceReasons for its exclu sion	299

Illustrations of the rule	300

Hearsay may relate to what is done or written as well as what is spoken	301

Hearsay may include things stated under oath or against interest	302

Statements apparently hearsay may be original evi	303

dence 304 Matters of public and general interest	304

Illustrations of the rule	305

Distinction between public and merely general rights	306

Reputation as to private boundaries excluded in Eng land	307

308 SameRelaxation of the rule in the United States	308

309 Declarations as to particular facts concerning private boundaries not admissible	309

Declarations of surveyors	310

Maps relating to subjects of public or general interest	311

Ancient documents in support of ancient possession Their custody	312

SameDocuments to come from the proper custody	313

Declarations must have been made before the contro versy arose	314

Same Meaning of the rule Lis mota	315

316 Declarations as to pedigree Reason for the excep tion	316

SameDeclarants relationship How proved Par ticular facts	317

Are the declarations limited to cases where pedigree is the direct subject of the suit	318

Acts and conduct of relatives admissible as well as dec larations Written declarations	319

SameFamily recognition of writings and records	320

321 Weight of such testimony	321

Declarations only admissible after death of declarant	322

Entries in the course of business By deceased persons	323

Same Principle extended to declarations by persons still living	324

Recollection of the fact by the person making the entry	325

Entries by a party himself	326

Declarations of deceased persons against interest In general	327

Sufficient if the entries are prima facie against interest	328

coscoscos	329

Relevancy of disconnected facts to show defective ma chineryRailroad fires	339

Same continued	341

Facts apparently collateral Value of lands	343

Same continued	345

SameMixed questions of law and factConstruction of writings Statutes	363

The court decides questions of lawCriminal cases	369

cascascoscoo CHAPTER VI	370

Nature of the disqualifying interest	373

SameForm of pleadings	376

SamePlaintiff generally has the burdenExcep	378

tions	379

How affected by form of issueWhether affirmative or negative	380

Burden as to particular facts lying peculiarly within knowledge of a party	384

Expert testimony When valuable	394

Inspection by the jury Personal injury cases	400

Parties formerly incompetent witnesses	405

View The former practice	407

Statutes regulating view	408

View discretionary	409

When view may be granted	410

Is the view evidence in the case	411

Same continued	412

Experiments out of court	413

Models Diagrams Photographs	414

Grounds on which evidence is excluded by statute of frauds	415

As to the conveyance of interests in land	416

The statute as affecting leases	417

Proof of surrender of interests in land	418

Surrender by operation of	419

Cancellation of instruments creating interests in land	420

Trusts How proved Need not be created by writing	421

The trust to be proved by writing	422

Exception as to resulting trusts	423

193 Burden and weight of proof where crime is in issue	424

SameMode of proving the trust Amount of evidence	425

Statutes limiting resulting trusts	426

SameObject of the statute	427

Proof of trusts between those holding fiduciary relations	428

WillsProcuring devise by frauds	429

Proof of guaranty 431 Sale of goods	430

What the memorandum is to contain	432

Same continued	433

Subsequent modification by parol Fraud Mistake	434

ReformationPart performance	435

Same Original agreement must be proved	436

Parol evidence inadmissible to vary written instru ments Reasons for the rule	437

BEST EVIDENCE	438

Illustrations of sufficient notice 221 Requisites of notice 222 Notice to produce On whom served 223 Effect of nonproduction 224 When notice to p...	439

The rule does not prevent proof of fraud Sealed and unsealed instruments	440

Illegality of contract may be shown Incapacity	441

As to mistakes of factsReformation of contracts Mistakes as to dates	443

Proof of independent or collateral contracts	444

ontracts	445

SameCorporate acts	457

Same	465

ities	480

688 Same	484

one subject or person than another	487

Where there is no latent ambiguity declarations	490

Evidence to explain latent ambiguities in deeds	496

Parol evidence to explain receipts	502

privity	505

Indorsements on negotiable paper	508

Degrees of secondary evidence	518

30 SameCases illustrating the American rule	519

Crossexamination of witnesses as to writings	522

CHAPTER VIII	524

ments	531

Defective recordsEvidence for some purposes	533

Same continued	534

CHAPTER IX	538

Proof of attested documents Attesting witnesses	539

Qualifications as to mere general recitals qualifications of general rule 286 As between landlord and tenant coscoscoscos com coocoo	540

Statutes affecting proof of documents Recording acts	550

Exceptions to the rule that mere certificates are	557

Writings used for comparison must be shown to	568

754	570

Immaterial alterations Conflicting views	574

coocoocoocopcoscoo	580

cascascos	581

Admissibility of facts in histories	600

Judgments in civil cases no bar in criminal cases	606

Judgments admissible against third persons for inci dental purposes	607

Judgments against principals in actions against their sureties	608

SameOther classes of bonds	609

Judgments When admissible as against third persons who are liable to make indemnity	610

Judgment must be final	611

Finality of judgmentsMust be on the merits	612

Effect of nonsuit discontinuance or appeal	613

Conclusive only as to matters in issue	614

SameNo admission from silence at judicial proceed ings	615

Extrinsic evidence to identify the issue	616

Same continued	617

Proof that issues are the same Burden	618

Effect of judgment where cause of action is different	619

Effect of judgment General issue	620

Matters which might have been litigated in former suit	621

Same continued	622

Judgments in rem as evidence	623

SameJudgment of divorce	624

Same continued	625

Judgments in probate Conclusive effect of Proof of death	626

SameJurisdiction	627

Collateral proof to show want of jurisdiction	628

Contrary view Qualifications of general rule	629

Inferior courtsJurisdiction to appear on record	630

Merits of foreign judgments Not open to inquiry	631

SameConflicting views	632

Foreign judgmentsMay be impeached for fraud or want of jurisdiction	633

Judgments of sister states Want of jurisdiction may be shown	634

SameRegularity presumed Proofs of fraud	635

Domestic judgments not impeachable by parties for fraud	636

Judgments How proved Should be complete	637

Proof of parts of record Verdict	638

Proof of judgments in courts where rendered	639

Proof of records of courts in the same state	640

Mode of proof of foreign records	641

SameMode of authentication	642

Proof of records of sister states Federal statutes	643

Proof of judgments in federal courts	644

AuthenticationAttestation by clerk	645

SameCertificate of the judge	646

SameSeal	647

Returns of officers Not evidence of collateral facts	648

Depositions not admissible at common	651

Offers of compromise	655

Effect of paying money into court	659

SameObjections When made	664

Other editions - View all

The Law of Evidence in Civil Cases, Volume 1
Burr W. Jones
Full view - 1896

The Law of Evidence in Civil Cases
Burr W. Jones
Full view - 1908

View all »

Common terms and phrases

action acts Allen applied Bank Barb Bish burden of proof character cial circumstances cited Clark cohabitation collateral common law conclusive presumption Conn Connecticut Mut contract courts take crime criminal Cush Dana Ky defendant dence evidence existence fact favor fraud given Gray Greenl H. L. Cas held husband illustrations inference infra Iowa issue Jackson Johnson judge judgment jurisdiction jury land lapse law merchant marriage Mass ment Minn N. J. Eq negligence officers Ohio St party person plaintiff possession presumed presumption of innocence principle proceedings proved question Railroad Railway rebutted relevant to show rule sexual intercourse shown Smith statute of limitations Steph Strob sumed sumption take judicial notice take notice Tayl Tenn testimony tion United Van Aernam weight of authority Wend Whart wife Williams

Popular passages

Page 30 - 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.‎

Appears in 376 books from 1864-2008

Page 384 - 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 proof of that fact shall lie on any particular person.‎

Appears in 54 books from 1866-1992

Page 56 - the rule for jurisdiction is that nothing shall be intended to be out of the jurisdiction of a superior court but that which specially appears to be so, and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged;" and this rule has been so frequently repeated as to have become a maxim in the law.‎

Appears in 195 books from 1813-2005

Page 192 - ... was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.‎

Appears in 49 books from 1871-2004

Page 245 - The signing by the Speaker of the House of Representatives, and by the President of the Senate, In open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed Congress.‎

Appears in 59 books from 1877-1992

Page 649 - A person may have exercised all the care which the law required, and yet, in the light of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards.‎

Appears in 70 books from 1870-1977

Page 482 - ... that he has, in good faith, exhausted in a reasonable degree all the sources of information and means of discovery, which the nature of the case would naturally suggest, and which were accessible to him.‎

Appears in 114 books from 1830-2005

Page 284 - Again, it is said that the word "relevant," as applied to the admission of evidence, means that any two facts to which it is applied are so related to each other that according to the common course of events one of them, taken by itself or in connection with other facts, proves or renders probable the past, present, or future existence or nonexistence of the other.‎

Appears in 51 books from 1852-2007

Page 245 - That whenever a question arises in a court of law of the existence of a statute, or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to resort to any Opinion of the Court.‎

Appears in 43 books from 1846-1968

Page 650 - People do not furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident. I think that a proposition to the contrary would be barbarous. It would be, as I have often had occasion to tell juries, to hold that, because the world gets wiser as it gets older, therefore it was foolish before.‎

Appears in 28 books from 1869-2007

Bibliographic information

Title	The Law of Evidence in Civil Cases, Volume 1 The Law of Evidence in Civil Cases, Burr W. Jones
Author	Burr W. Jones
Publisher	Bancroft-Whitney, 1896
Length	2198 pages

Export Citation	BiBTeX EndNote RefMan

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