Commentaries on the Law of Evidence in Civil Cases, Volume 4

Front Cover
 

Contents

Patent AmbiguityLatent Distinguished
2828
Definitions
2830
Comment
2831
Beyond Possibility of Construction 1551 Attitude of Courts
2833
IDENTIFICATION OF PARTIES AND SUBJECT MATTER 1552 Rule Stated
2835
General Illustrations
2839
Necessity of Basis in Writing
2841
PartiesIn General
2842
True Relation to Writing
2844
Agency
2848
Suretyship
2850
Practical Interpretation by Parties
2852
In General
2853
Explanation of True Consideration
2856
Attacking Consideration in Avoidance of Writing
2859
Conveyances and Sealed InstrumentsIn General
2861
Denial of Any Consideration
2864
Effect of Recital on Third Persons
2867
Covenant Against Incumbrances
2868
Scope of Evidence to Explain
2869
Want of Consideration Where Fraud Alleged 1570 Rebuttal Where Fraud Alleged
2871
USAGES AND CUSTOMS 1571 Ground for Showing
2873
Implied Annexation
2875
Limitations on Proof
2876
Implication Where Dealing By or With Agent
2877
Implication in Shipping ContractIn General
2879
Contradiction of Specific Wording
2880
Implication in Insurance Policy
2881
Implication in Contract for Material
2884
Implication in Contract for Services
2885
Implication Between Landlord and TenantIn General
2886
Illustrations
2888
Implication in Miscellaneous Agreements
2889
General RequisitesReasonableness 1584 Common or Public Good
2892
Period of Existence Necessary to Recognition
2894
Knowledge Generally
2896
Presumptive Knowledge
2899
Knowledge of Trade Usage
2901
Consistency With Contract
2902
Test for Consistency
2904
Notoriousness and Extent 1592 Uniform Recognition
2907
Uniform Certainty in Practice
2908
Compulsoriness and Peaceableness
2909
Lawfulness
2910
Application of Principles
2922
Identification of BeneficiaryIn General
2926
Two or More Answering Description
2929
None Precisely Answering Description
2933
Illustrations
2935
Partial Rejection of Description
2936
Declarations of TestatorAdmissibility Generally
2938
Admissibility Where Latent Ambiguity
2941
Showing Signification of Word or Name
2943
Showing Intention in Omitting from Will 1611 Changing Legal Effect
2944
Conflict of Authority
2945
Time of Making
2947
To Show Mental Condition
2948
As Substantive Evidence of Fraud
2950
To Show Revocation
2954
Existence and Contents of Lost Will
2956
DEEDS
2958
In General
2961
Ambiguities and Uncertainties
2962
Dates and Parties
2964
Reservations and ExceptionsIn General 1622 Illustrations
2966
WarrantiesIn General
2969
Rule Applied
2972
Liberal View
2974
Deficiency in Quantity of Land
2978
AcknowledgmentsRule Between Parties
2979
Presumptions from Certificate
2980
Rule as Against Bona Fide Purchasers
2983
RECEIPTS AND RELEASES 1630 Explanation Generally
2985
Application of Rule
2987
Extent of Extrinsic Evidence Admissible
3000
NEGOTIABLE PAPER AND BILLS OF LADING
3002
General Rule
3003
Illustrations of RuleTime or Place of Payment
3004
Miscellaneous
3007
Qualifications and ExceptionsCircumstances Avoiding 1643 Conditional Delivery
3009
Discharge Payment or Release
3018
Explanation of Ambiguities 1646 Relation and Identification of Parties
3019
IndorsementsIn Full or In Blank
3021
Restrictive 1649 Where Instrument is NonNegotiable
3027
Waiver of Demand or Notice
3028
Bills of LadingIn General
3029
Recitals as to Receipt of Goods
3030
Estoppel Under Minority View
3033
Condition Quantity or Value of Goods
3034
Merger of Prior Negotiations
3036
As Deeds
3037
Evidence Admissible Generally
3039
Latent Ambiguities
3041
CHAPTER 17
3043
What Constitute 1702 Formality of Entry and Nature of Duty 1703 Recitals in Excess of Official Duty 1704 Mode of Proof 1705 Marriage Birth and...
3044
Unofficial Digests and Reports 1724 State Statutes and Usual Practice 1725 Decisions and Unwritten Law 1726 Proclamations and Acts of StateIn Ge...
3045
Market Reports 1755 Government Gazettes and Reports 1756 LettersMode of Proof 1757 Admissibility as Part of Contract or Other Fact in Issue AL...
3046
Strictness of Common Law Rule
3056
Relaxation Where Attestation Not Required
3058
Attestation to Signature by Mark 1667 Examination of Attesting Witness
3059
Impeachment of Attesting Witness
3061
Rule Where Witness Unavailable
3062
Diligence to Procure Witness
3064
Proof of Handwriting of Unavailable Witness
3067
Proof of Handwriting of Party
3068
Diligence to Prove Handwriting of Unavailable Witness
3070
ExtraJudicial Admissions of Execution
3071
Rule Where Several Attesting Witnesses
3072
Summary
3073
Modes of Proving Handwriting
3074
Adverse Party Claiming Under or Wrongfully Withholding Document 1679 Ancient DocumentsIn General
3076
Where Executed Under Special Power
3078
Necessity for Corroboration
3079
Sufficiency of Possession Under Document as Corroboration
3081
STATUTES AFFECTING MODE OF PROOF
3084
In General
3085
Recorded DocumentsIn General
3086
Validity of Record
3088
Record as Dispensing with Preliminary Proof of Execution 1687 Defective Record as Secondary Evidence
3092
Copies of Record or Recorded DocumentsIn General
3093
Examined Copies
3096
Form and Sufficiency
3097
Who May Certify
3100
Admissibility where Original Inadmissible
3101
As Exclusive Evidence PUBLIC DOCUMENTS OTHER THAN JUDICIAL
3102
In General
3103
Foreign RecordsStatutes Affecting Proof
3105
Application of Federal Statute
3108
Federal Department RecordsStatutes Generally
3110
Strictness of Statutes
3112
Effect of Statutes
3114
Official Entries and RegistersIn General
3117
To Show Fact of Corporate Action
3174
Illustrations
3256
Test of Materiality
3257
Where Intent Fraudulent
3258
Materiality as Question of Law or Fact
3259
Implied Consent to AlterationLeaving Blanks in Instrument
3260
Alteration Not Confined to Filling Blanks
3263
Rules as to Deeds
3265
Presumption as to Time of AlterationIn General
3266
View of No Presumption Whatever
3268
View Presumed Subsequent to Execution
3269
View Presumed Prior to Execution
3271
Negotiable Instruments
3273
Fact of Alteration as Jury Question
3274
Action Other Than on Altered Writing
3276
Attempted Restoration of Document to Original Form
3278
Ratification and Waiver
3279
CHAPTER 18
3284
Transcription of Entries from Memoranda
3307
Certificate of ClerkWho May Make 1897 Form 1898 Certificate of JudgeWho May Make 1899 Form and Effect 1900 Seal of Court Rendering Judg...
3340
Return as Evidence Generally 1903 Facts Not Required to be Stated 1904 Conclusiveness Between PartiesIn General 1905 Direct Attack 1906 Conclu...
3341
Limitations of Rule
3366
Civil and Criminal ActionsIn General
3368
Exceptions and Minority View
3369
Fact of Rendition as BindingGeneral Principle
3371
Application of Principle
3373
Judgment Against Principal as Binding SuretyConflict of Authority
3375
As Prima Facie Evidence
3379
Bonds of Executors Administrators and Guardians 1823 Judicial and Official Bonds
3382
Judgment Against Surety as Binding Principal
3384
Indemnitors and Persons Liable OverNecessity of Notice to Defend
3385
Nature and Sufficiency of Notice
3387
Warrantors and Covenantors
3389
Dismissal for Want of Jurisdiction
3397
Technical Defeat
3398
Ruling on Demurrer
3399
Nonsuit Discontinuance and Nolle Prosequi
3404
Dismissal Agreement to Dismiss and Judgment Pro Confesso
3405
Effect of Appeal
3410
SUBJECTMATTER CONCLUDED 1837 Matters Actually LitigatedIn General
3412
View that Issues Control
3414
View that Facts Necessary to Judgment Control
3415
Materiality in Former Action
3417
Change of Form of ActionRule Stated
3418
Illustrations
3419
First Action in Ejectment
3420
Change of Forum
3422
Matters Which Might Have Been LitigatedGeneral Rule 1846 Extent of Rule
3425
Exceptions to Rule
3430
SetOffs Counterclaims and CrossDemands
3433
Defense of Payment
3437
Default Cases
3438
Subsequent Action on Different CauseIn General
3439
Matters Not Litigated in First Action
3440
What Constitute Different Causes
3443
Identification of IssueAdmissibility of Extrinsic Evidence
3447
Mode of Proof
3448
Burden of Proving Issue SameIn General
3449
Where Several Issues
3451
Effect of Failure to Plead Specially
3452
Summary
3454
JUDGMENTS IN REM 1860 Definition and Distinctions
3456
Persons Bound
3457
Illustrations
3459
Attachment and Garnishment
3463
DivorceDual Nature of Judgment
3464
Extraterritorial Recognition
3467
Probate MattersIn General
3471
Letters of Administration and Allowance of Claims
3473
Extraterritorial Effect
3475
JURISDICTION OF COURT 1869 Presumptions Generally
3477
Collateral AttackAdmissibility of Extrinsic Evidence 1871 Where Record is Silent
3482
Probate CourtsJurisdiction as Essential
3484
Death as Jurisdictional in Certain Cases
3486
Inferior Courts
3487
FOREIGN JUDGMENTS 1875 In General
3489
Inquiry Into MeritsEnglish View
3491
View in United States
3493
Fraud and Want of Jurisdiction
3495
JUDGMENTS OF SISTER STATES 1879 Direct Enforcement
3497
Conclusiveness Generally
3498
Attack on Jurisdiction
3501
Attack as Fraudulent
3503
FRAUDULENT JUDGMENTS 1883 In General
3507
Extent and Limits of Rule
3508
MODE OF PROOF
3511
In General
3513
Parts of Record
3514
In Court Rendering 1888 In Other Courts of Same State
3516
Foreign JudgmentsIn General
3518
Authenticated Copies
3519
Sufficiency of Authentication
3520
Records from Sister StateStatutes Governing Proof
3522
Justice Court Records
3523
Federal Judgment in State Court
3525
State Judgment in Federal Court
3526
CHAPTER 20
3546
Time of Giving 1962 Formal SufficiencyTime of Taking 1963 Names 1964 Place of Taking 1965 By Whom Given and Served 1966 Upon Whom ...
3547
Delegation or Transfer of Authority 1971 Outside of StatePowers of Commissioner 1972 Application for Commission 1973 Interrogatories 1974 Pro...
3548
Tampering and Opportunities for Fraud 2006 Deprivation of CrossExamination 2007 Refusal of Witness to Answer 2008 View Refusal of Witness N...
3549
General Statute 1919 State Procedure 1920 For Use in Preliminary Proceeding 1921 Whose Deposition May be Taken and Used
3569
1921a Before Whom Taken
3572
NoticeIn General
3573
Time of Giving
3575
Time of Taking Place and Names
3577
Service
3579
Defects Which Might Have Been Obviated
3591
Attendance at Examination as Waiver
3592
BY DEDIMUS POTESTATEM IN FEDERAL COURT 1936 Provisions of Statute 1937 Preventing Failure or Delay of Justice
3594
Naming and Appointment of Commission
3596
InterrogatoriesForm and Nature
3597
Additional Interrogatories and Time for Filing 1941 Common Usage in TakingIn General
3598
State Usage
3601
Procedure in TakingIn General
3603
Place 1945 Control of Court
3605
Number of Commissioners and Oath of Office
3606
Oath of Witness 1948 Compelling Attendance of Witness
3608
Compelling Production of Documents
3610
FEDERAL EQUITY TRIALS 1950 Statutes Generally
3612
General Rules of Court
3613
Time for Taking and Filing
3615
Mode of Taking
3616
Taking Pursuant to General Statutes
3617
STATE STATUTES GENERALLY 1955 Survey of Statutes
3619
Strictness of Construction
3621
Compliance With StatutesApparent From Deposition 1958 Presumptions in
3624
Minor Irregularities
3625
NOTICE OF TAKING UNDER STATE STATUTES 1960 Necessity Generally
3627
Provisions of Original Notice
3667
Notice of Adjournment
3669
Interlineations and Erasures 1984 Technical Irregularities and Misnomers
3670
Caption
3674
CertificateIn General
3675
Irregularities
3679
Taking Pursuant to Notice
3680
ExhibitsNecessity of Attaching to Deposition
3681
Extracts and Copies
3684
Relevancy and Best Evidence
3686
Memoranda to Refresh Memory
3687
Documents Read Into Deposition
3688
Presence of Party at Taking Generally
3689
Defects in or Failure to Give Notice
3691
To Authority of Commissioner
3692
Time for MakingIn General
3695
Interrogatories and Answers
3731
RetakingIn General
3733
Mistake or Newly Discovered Evidence
3736
USE AND EFFECT 2017 Continuation of Ground for TakingNecessity in General
3737
Illness or Infirmity of Witness
3738
Absence Threatened Absence and Nonresidence 2020 Presence of Deponent at Trial
3741
Particular Statutes
3744
Presumptions Inferences and Burden of Proof
3745
Existence of New or Other Ground
3747
Continuing Competency of Witness as Such
3748
In Subsequent ActionIn General
3751
Procedure
3754
Second Trial of Same Cause
3755
Identity of Parties and Issues
3757
Opportunity for CrossExamination
3760
In Action for Which Procured
3761
Depositions Taken by Adversary
3763
Partial UseGeneral Rule
3767
Modifications and Exceptional Rules
3770
Letters Rogatory
3772
Procedure Generally
3773
Honoring Letters Rogatory from Other Countries
3774
DEPOSITIONS TO PERPETUATE MEMORY 2037 Application for Order
3776
Notice and Manner of Taking
3779
Use and Effect
3780
Copyright

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Page 3500 - The records and judicial proceedings of the courts of any State or Territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form.
Page 3500 - And the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from whence the said records are or shall be taken.
Page 3217 - That the alteration in this instrument would have avoided it, if it had been a deed, no person can doubt. And why in point of policy would it have had that effect in a deed ? Because no man shall be permitted to take the chance of committing a fraud, without running any risk of losing by the event when it is detected.
Page 3594 - Objections to questions or evidence shall be in short form, stating the grounds of objection relied upon, but no transcript filed by the officer shall include argument or debate.
Page 3014 - It is a settled doctrine of the law of agency in this state that where the principal has clothed his agent with power to do an act upon the existence of some extrinsic fact necessarily and peculiarly within the knowledge of the agent, and of the existence of which the act of executing the power is itself a representation, a third person dealing with such agent in entire good faith, pursuant to the apparent power, may rely upon the representation, and the principal is estopped from denying its truth...
Page 2978 - When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking was reduced to writing...
Page 3633 - The commission must authorize the commissioner to administer an oath to the witness, and to take his deposition in answer to the interrogatories, or, when the examination is to be without interrogatories, in respect to the question in dispute, and to certify the deposition to the court, in a sealed envelope, directed to the clerk or other person designated or agreed upon, and forwarded to him by mail or other usual channel of conveyance.
Page 3086 - And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken.* 906.
Page 3537 - In any case where it is necessary, in order to prevent a failure or delay of justice, any of the courts of the United States may grant a dedimus potestatem to take depositions according to common usage...
Page 3593 - All depositions taken under a statute, or under any such order of the court, shall be taken and filed as follows, unless otherwise ordered by the court or judge for good cause shown: Those of the plaintiff within sixty days from the time the cause is at issue; those of the defendant within thirty days from the expiration of the time for the filing of plaintiff's depositions; and rebutting depositions by either party within twenty days after the time for taking original depositions expires.