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Popular Law Library Vol11 Common Law Pleading, Code Pleading, Federal Procedure, Evidence | by Albert H. Putney



The subject of common law pleadings is that concerned with the pleadings in proceedings before common law courts. A pleading is "a statement in a logical and legal form, of the facts which constitute the plaintiff's cause of action or the defendant's ground of defense".

TitlePopular Law Library Vol11 Common Law Pleading, Code Pleading, Federal Procedure, Evidence
AuthorAlbert H. Putney
PublisherCree Publishing Company
Year1908
Copyright1908, Cree Publishing Company
AmazonPopular Law-Dictionary
-Thirty-Fourth Subject. Common Law Pleading. Chapter I. Introductory. Section 1. Reference To Subject Of Legal History
The early history of common law pleading can be found in the seventh chapter of Legal History.1 ...
-Section 2. Definition
The subject of common law pleadings is that concerned with the pleadings in proceedings before common law courts. A pleading is a statement in a logical and legal form, of the facts which constitu...
-Section 3. Common Law Pleading In America
The English system of common law pleading in a more or less modified form, is still in use in about half of the states of this country. In the other states a system of code pleading has been adopted. ...
-Chapter II. Parties. Section 4. Who Can Sue Or Be Sued
The English rule as to the parties to an action was that all persons could sue or be sued with the exceptions that felons, outlaws, and alien enemies could not sue, and the sovereigns, foreign states ...
-Section 5. Plaintiffs
Everyone whose legal right has been infringed may become the plaintiff in an action for the redress of such injury. Formerly rights of action, with a few exceptions such as negotiable instruments, cou...
-Section 6. Joinder Of Plaintiffs. Parties Jointly Interested Must Sue Together
In actions ex contractu, misjoinder or nonjoinder of plaintiffs may be taken advantage of by-demurrer, motion in arrest of judgment, or writ of error, or, where the defect is not apparent on the face...
-Section 7. Joinder Of Defendants
Parties subject to a common liability must be sued jointly or severally, according to the nature of the undertaking, the intenion of the parties, or the express words of the contract. In actions e...
-Chapter III. Common Law Actions. Section 8. Classification Of Actions
Actions under the common law are divided into real, mixed, and personal. Personal actions are subdivided into actions, ex contractu, or actions arising out of contracts, and actions ex delictu, or act...
-Chapter IV. Real And Mixed Actions. Section 9. In General
The number of different real actions was, in early times, very large. It is impossible to give the exact number of such actions, but there appear to have been several hundred of them in all. Real acti...
-Section 10. Writ Of Right
The proprietary right to an estate in fee simple was determined by the writ of right often referred to as the grand assize, from the method of trial granted by Henry II, in actions of this character. ...
-Section 11. Writs In The Nature Of Writs Of Right
In addition to the true writs of right there were a large number of writs in the nature of writs of right, which were used for the purpose of recovering the right of property in incorporeal hereditame...
-Section 12. The Lesser Assizes
The lesser assizes were four possessory actions in which the assize, or trial by jury, was permitted. The development of these assizes is described in the following extracts from Pollock and Maitland'...
-Section 13. The Writ Of Entry
The lesser assizes were very limited in their scope, only furnishing a remedy against the disseisor and his tenant or alienee during the disseisor's lifetime, and to supplement these assizes the writ ...
-Section 14. Other Ancient Real Writs
The writ of quare impedit was a possessory writ concerning the presentation to a benefice. The writ of waste was an action by the reversioner or remainderman against the tenant in possession who ha...
-Section 15. Modern Real Actions
The modern real actions are much simpler and fewer in number than the ancient real writs. The important real actions at the present time are those of ejectment and forcible entry and detainer. The ...
-Section 16. Ejectments
In most of the states which have not adopted the code procedure, ejectment is the method to try a title to land. This action has been freed from most of the fictions which formerly surrounded it, and ...
-Section 17. Forcible Entry And Detainer
The action of forcible entry and detainer is a summary proceeding to recover possession. This remedy was formerly incidental to a criminal proceeding, but is now a civil action entirely regulated by s...
-Chapter V. Personal Actions Ex Contractu. Section 18. Debt
The action of debt is the oldest personal common law action. The field of the action of debt is broader than that of pure contract law and lies to enforce a legal duty created by contract, custom or r...
-Section 19. Detinue
The action of detinue stands on the border line between contract and tort. Historically it is an offshoot from the action of debt; in practice it bears a much closer resemblance to tort actions than t...
-Section 20. Covenant
Covenant is an action to recover damages for the breach of a contract (covenant) under seal. The action lies on covenants contained in deeds either expressly, or by implication. It always lies on cove...
-Section 21. Annuity
There was an old common law personal action for the recovery of an annuity. An annuity strictly speaking was an annual sum of money granted to another in fee for life or years, and chargeable only ...
-Section 22. Assumpsit
The most important of all personal actions ex contractu is that of assumpsit. The action of assumpsit grew out of the Statute of Westminster II,9 and was an off-shoot of the action of case. We thus ha...
-Section 23. Account
Account was one of the oldest forms of actions ex contractu. For several hundred years the action of account occupied no mean place among the common-law remedies. In modern times the bill in equit...
-Section 24. Scire Facias
Scire facias is in its nature an auxiliary action. It is brought on the record of a prior action and its object is to enforce judgments, recognizances, or other obligations of record, and to continue ...
-Chapter VI. Actions Ex Delictu. Section 25. Trespass
The action of trespass was the earliest tort action, and prior to the passage of the Statute of Westminster II, the field of tort and of trespass may be said to have been co-extensive. Since the passa...
-Section 26. Trespass On The Case
Trespass on the case is the most important of the forms of actions growing out of the Statute of Westminster II. In general it gives relief for those wrongful acts not covered by the action of trespas...
-Section 27. Trover
Trover is a specialized form of trespass on the case, and was the last of the important personal actions to come into existence. Trover bears a close resemblance to the action of detinue sur trover, b...
-Section 28. Replevin
Replevin is the most effective of all actions for the recovery of specific chattels wrongfully taken or withheld. It lies in favor of the owner of such chattels both for the purpose of recovering the ...
-Chapter VII. The Pleadings. Section 29. Definition
'Pleadings of parties'are the allegations made by the parties to a civil or criminal case, for the purpose of definitely presenting the issue to be tried and determined between them. 1 'The offi...
-Section 30. The Different Pleadings
The different pleadings in their order in a common law action are as follows: 1. The Declaration. 2. The Plea. 3. The Replication. 4. The Rejoinder. 5. The Surrejoinder. 6. The Rebut...
-Section 31. The Issue
An issue is a proposition asserted by one side and denied by the other. The object of all pleading is to reach an issue. Issues may be either of law or of fact. True pleadings can only produce issues ...
-Section 32. The Declaration
The first pleading in the declaration (or count4) is the formal statement on the part of the plaintiff of his cause of action. The province of the declaration is to exhibit, upon the records, the ...
-Section 33. The Plea
The first pleading on the part of the defendant is the plea. Pleas are divided into dilatory pleas and peremptory pleas. Peremptory pleas are those which go to the merits of the actions. Dilatory plea...
-Section 34. Traverse
A plea by way of traverse is a denial of some one fact or of all the facts, set up in the plaintiff's declaration. Pleadings later than the plea can also be by way of traverse. In such cases there is ...
-Section 35. General Traverse Or General Issue
'The general issue is a comprehensive denial of the whole cause of action or the principal part thereof,8 putting in issue those facts the burden of proving which rests primarily on the plaintiff, but...
-Section 36. Special Traverse
A special traverse consists of a statement of new matter amounting to an argumentative denial of facts adversely alleged, as an affirmative inducement to a specific traverse of some allegation in the...
-Section 37. Replication De Injuria
A particular kind of a traverse which is only available to the plaintiff in his replication, is the replication de injuria. The leading case on this subject is that known as Crogate's Case,21 the d...
-Section 38. Pleadings By Way Of Confession And Avoidance
The plea by way of confession and avoidance is what its name implies, i. e., a plea which confesses the truth of the facts alleged in the declaration and seeks to avoid the consequences of them by al...
-Section 39. Demurrers
A demurrer is an objection that the pleading against which it is directed is insufficient in law to support the action or defense, and that the demurrant should not, therefore, be required to further...
-Section 39. Demurrers. Continued
Having disposed of the fourth and fifth special causes of demurrer, we will now inquire, in their order, whether or not the judgment which was given can be sustained upon either of the other alleged ...
-Chapter VIII. Rules Of Pleading. Section 40. Rules Tending Solely To The Production Of An Issue
(1) After the declaration, the parties at each stage must demur, or plead, either by way of traverse or of confession and avoidance. (2) Upon a traverse, issue must be tendered. (3) When issue i...
-Section 41. Rules Tending To Produce A Material Issue
(1) All pleadings must contain matter pertinent and material. Two minor rules need to be noticed: A traverse must not be taken on an immaterial point. A traverse must not be too large, or too na...
-Section 42. Rules Tending To Produce A Single Issue
(1) Pleadings must not be double. This rule, as applied to the declaration, means that it must not, in support of a single demand, allege several distinct matters, by any one of which that demand is s...
-Section 43. Rules Tending To Produce A Certain Issue
(1) The pleadings must have certainty of place; i. e., the venue of the action, namely, the county in which it is to be tried, must be stated in the declaration. Actions, with regard to venue, are ...
-Section 44. Rules Tending To Prevent Obscurity And Confusion
(1) Pleadings must not be insensible, or repugnant; i. e., they must be intelligible, and consistent with themselves. (2) Pleadings must not be ambiguous, or doubtful in meaning, and when two const...
-Section 45. Rules Tending To Prevent Prolixity And Delay
(1) There must be no departure in the pleadings. A departure occurs when, in any pleading, the party deserts the ground which he took in the last antecedent pleading, and resorts to another. (2) Wh...
-Section 46. Certain Miscellaneous Rules
(1) The declaration must be conformable to the writ. (2) The declaration should have its proper commencement, and should in conclusion, lay damages. (3) Pleas must be pleaded in due order. (4...
-Chapter IX. The Trial. Section 47. The Proceedings In An Action
The various steps in the proceedings in an action are as follows: (a) The process. (b) The appearance of the defendant. (c) The trial. (d) The verdict. (e) The judgment. ...
-Section 48. The Process
Process is any writ or other judicial means by which a defendant is called or brought into court to answer the plaintiff's declaration. The common forms of process are: (a) The writ of summons, whi...
-Section 49. Attachment
A writ of attachment is a writ which commands the seizure of the property of the defendant to satisfy the demand of the plaintiff. This writ to attach or measure process is an extraordinary power, unk...
-Section 50. Jurisdiction Of Court
The question of the territorial jurisdiction of a court is thus summarized: In order to give jurisdiction the action must be brought where the defendant or one of the defendants resides or may be ...
-Section 51. Appearance
The appearance of the defendant is the act or proceeding by which he is brought or places himself before the court, in order to answer the action. It may be either: (a) Voluntary; or (b) Inv...
-Section 52. Default Of Defendant
If the defendant fails to put in an appearance after having been properly served he will be defaulted. It is generally necessary in such cases, however, for the plaintiff to prove up the amount of his...
-Section 53. The Pleadings
After the appearance of the defendant comes the defendant's plea (or demurrer), and the other pleadings until the case is at issue. The various pleadings of the two parties have been already discussed...
-Section 54. The Trial
The case having been brought to an issue by means of the pleadings, the next step is the trial of such issue. In general, issues of law are determined by the judge, and issues of fact by the jury. A j...
-Section 55. The Jury
The first step in the trial of a case is the securing of a jury. Where (as in the United States Constitution) a jury trial is guaranteed without any qualification, a common law jury of twelve men is m...
-Section 56. The Introduction Of The Evidence
The law governing this portion of a trial is treated as a separate subject.34 ...
-Section 57. Exceptions
Various questions of law, such as those as to the admissibility of evidence, are constantly arising during the trial, which it is necessary for the trial judge to pass upon. If either party objects to...
-Section 58. The Verdict
The verdict is the decision of the jury upon the issue submitted to them. The verdict must be responsive to the issue submitted for trial. It is usually in general terms 'for the plaintiff.' or 'f...
-Chapter X. Proceeding After Verdict. Section 59. Motion For A New Trial
A motion for a new trial may be denned to be an application by a party interested in the action for an order of court granting a re-trial or re-examination in the same court of an issue of fact, or s...
-Section 60. Motion In Arrest Of Judgment. A Motion In Arrest Of Judgment, Like A Motion For A New Trial, Must Be Made In The Court Where The Verdict Was Rendered. It Can Only Be Made By An Unsuccessful Defendant, And Must Be Based On Error Apparent On The Face Of The Record. Section 61. Motion For Judgment Non Obstante Verdicto
This motion is made by the plaintiff. It was made in cases where, after a pleading by the defendant in confession and avoidance, as, for example, a plea in bar and issue joined thereon, and verdic...
-Section 62. Motion For A Repleader
This motion may be made by the unsuccessful party, whether plaintiff or defendant, when he conceives that the issue joined was an immaterial issue, that is, not taken on a point proper to decide the ...
-Section 63. Writs Of Error
A writ of error is a writ issued from a court of appellate jurisdiction directed to the judge or judges of a court of record, requiring them to remit to the appellate court the record of an action be...
-Section 64. Bills Of Exceptions
A bill of exception is a formal statement in writing of exceptions taken by a party on the trial to a ruling, decision, charge or opinion of the trial judge, setting out the proceedings on the trial,...
-Thirty-Fifth Subject. Code Pleading
BY Aaron Heims, LL. B. Professor Of The Law Of Practice, Pleading And Evidence At The Illinois College Of Law. ...
-Chapter I. Principles Of Code Pleading. Section 1. Objects And History Of Codes Of Procedure
The reformed procedure, commonly called code pleading, is designed to simplify the pleadings used in civil actions, to effect the abolition of forms of action, and the distinction between actions in e...
-Section 2. Parties To Actions
The codes provide for only one form of civil action, and abolish the distinction between actions at law and suits in equity and the forms of those actions and suits.1 The strict construction given ...
-Section 2. Parties To Actions. Continued
11 1 Ofaitty Pl., 10. 12 1 Chitty Pl., 43 13 1 Ohitty Pl., 205. 14 N. Y. Code Civ. Pro., Sec. 454. It has already been stated that, in general, an action must be prosecuted in the name of the...
-Chapter II. Pleadings Under The Code. Section 3. The Complaint
The first pleading on the part of the plaintiff is the complaint1 or petition;2 it will hereinafter be called the complaint. 'The complaint shall contain 1. The title of the action, specifying t...
-Section 4. Demurrers
The demurrer under the codes has the same effect as at common law, and may be interposed to any pleading of fact. The provisions of the codes concerning a demurrer to the complaint are as follows: ...
-Section 5. The Answer
The pleading which takes the place of the declaration at common law and the answer in chancery is under the codes called the answer. The answer of the defendant must contain: 1. A general or sp...
-Section 6. The Counter Claim
Unless it is interposed as an answer to the entire complaint, it must distinctly refer to the cause of action which it is intended to answer. 16 The defendant may also interpose a counterclaim as ...
-Section 7. The Reply
A reply is in a number of states required to be filed to new matter contained either in an answer or counterclaim, but no pleading is permitted in response to a reply except a demurrer, which may be u...
-Section 8. Amendments To Pleadings
In order to prevent a miscarriage of justice by-reason of defects in pleadings, liberal provision is made for the amendment of pleadings at any stage of the cause. The most important of these provi...
-Section 9. General Mode Of Pleading
Various other provisions are contained in the codes which tend to simplify the structure of the pleadings, and to avoid the prolixity of statement required in pleadings at common law. Of these the ...
-Section 10. Notice Of Pendency Of Action
At common law the pendency of a suit affecting the title to real estate was notice to the world, and persons dealing with such property in good faith and in ignorance of the existence of the suit took...
-Thirty-Sixth Subject. Jurisdiction Of The Federal Courts And Federal Procedure. Chapter I. The Federal Courts. Section 1. Constitutional Provisions
The constitutional provisions relative to the Federal Courts have been already considered under the subject of Constitutional Law.1 Some slight repetition, however, is necessary at the beginning of th...
-Section 2. Jurisdiction Of United States Courts As Fixed By Statute
The power herein granted is the maximum which may be exercised by the United States; it is not necessary that the United States assume this jurisdiction in full. By the Revised Statutes of the United ...
-Section 3. United States Courts
At the present time there are three different grades of regular inferior United States Courts, viz.: District Courts, Circuit Courts, and Circuit Courts of Appeal. The two former were first establishe...
-Chapter II. The District Courts. Section 4. Statutory Provisions
The United States statutes give the district courts of the United States jurisdiction: First. Of all crimes and offenses cognizable under the authority of the United States, committed within their ...
-Section 5. Decisions And Notes On The Jurisdiction Of The District Courts
The most important classes of civil cases over which the District Courts take jurisdiction are admiralty and bankruptcy cases, both of which have been already referred to under the subject of Constitu...
-Chapter III. The Circuit Courts. Section 6. Statutory Provisions
Under the United States Statutes, the Circuit Courts of the United States have original cognizance1 concurrent2 with the courts of the several states, of all suits of a civil nature, at common law or ...
-Section 7. Decisions And Notes On Jurisdiction Of The Circuit Courts
The Circuit Courts of the United States have exclusive jurisdiction in cases relative to Patents or Copyrights. These subjects have been already treated in a previous volume.14 The Circuit Courts a...
-Section 8. Where Suits Must Be Brought
No civil suit can be brought before either the district or circuit courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, except t...
-Section 9. Removal Of Suits From State Courts
Any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, under their authority, of which the Circuit Courts of the United States ...
-Section 10. Appellate Jurisdiction Of Circuit Courts
The appellate jurisdiction of the United States Circuit Courts was taken away at the time of the creation of the Circuit Courts of Appeal.24 22 Rev. Stats. 641 and 642. See Strauder vs. West Virgin...
-Chapter IV. The Circuit Courts Of Appeal And The Supreme Court. Section 11. Appellate Jurisdiction Of The Supreme Court And Of The Circuit Court Of Appeals
The Circuit Courts of Appeal have appellate jurisdiction to review, by appeal or writ of error, final decisions of the district or circuit courts in all cases where direct appeal to Supreme Court is n...
-Section 12. Appeals From Circuit Court Of Appeals To Supreme Court
In all cases not expressly made final in the Circuit Court of Appeals, there is of right an appeal or writ of error or review of the case by the Supreme Court of the United States, where the matter in...
-Section 13. Appeals Directly From District And Circuit Courts To The Supreme Court
Appeals or writs of error may be taken from the district or circuit courts directly to the Supreme Court in the following cases: In any case in which the jurisdiction of the court is in issue; in such...
-Section 14. Appeals From Territorial Courts To Supreme Court
Appeals and writs of error he from the Supreme Court of the District of Columbia and from the Supreme Courts of any of the territories of the United States, to the Supreme Court of the United States w...
-Section 15. Appeals From The Court Of Claims To Supreme Court
An appeal to the Supreme Court is allowed on behalf of the United States, from all judgments of the Court of Claims adverse to the United States, and on behalf of the plaintiff in any case where the a...
-Section 16. Appeals From State Courts To The Supreme Court
A final judgment or decree in any suit in the highest court of a State in which a decision in the suit can be had, where is drawn in question the validity of a treaty or statute of, or an authority ex...
-Section 17. Original Jurisdiction Of Supreme Court
The original jurisdiction of the Supreme Court is fixed by the Constitution and has been considered under the subject of Constitutional Law.14 The Circuit Courts of Appeal have no original jurisdictio...
-Chapter V. Pleading And Practice In The Federal Courts. Section 18. Law And Equity
The distinction between law and equity is made by the Constitution of the United States and is therefore carefully preserved in the Federal courts. A State statute prescribing a remedy at law for a ca...
-Section 19. Common Law Practice And Pleading
The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty cases in the circuit and district courts of the United States, conform as nearly as practic...
-Section 20. Equity Practice And Pleading
The equity procedure of the Federal courts, is independent of that in the state courts. The Federal courts in this branch of their jurisdiction, have their own rules and practice. These rules are in ...
-Thirty-Seventh Subject. Evidence
By Arthur W. Dixon, LL. D. Professor Of Medical Jurisprudence At The Illinois College Of Law, Author Of Dixon's Revised Law Examiner, Joint Author Of Busch & Dixon's Law Examiner, ETC., Late...
-Chapter I. Kinds Of Evidence. Section 1. Definitions
Evidence, in its broadest sense, includes all the means by which any alleged matter of fact, the truth of which is submitted for investigation, is established or disproved. It embraces every matter of...
-Section 2. Competent Evidence
By competent evidence is meant that which the very nature of the thing to be proved requires as the fit and appropriate proof in the particular case, such as the production of a writing, where its con...
-Section 3. Relevant Evidence
Evidence is relevant when it proves or tends to prove the issues of fact which the parties have made by their pleadings, or constitutes a link in the chain of proof. ...
-Section 4. Material Evidence
Evidence is said to be material when it bears upon the substantial matters in controversy, and has probative weight in determining the issues presented by the pleadings. ...
-Section 5. Evidence And Proof Distinguished
While legal writers and practitioners alike have often used these terms indiscriminately, as synonymous with each other, each has a well-defined meaning in the law. The most careful logicians have app...
-Section 6. Direct And Circumstantial Evidence
Direct evidence is the testimony, either verbal or written, of competent witnesses, who speak from their own actual and personal knowledge concerning matters which go immediately to a fact in issue. T...
-Section 7. Affirmative And Negative Evidence
Where a witness swears that a particular act occurred at a specified time and place, or that particular language was spoken, this is affirmative or positive evidence. But if another witness were p...
-Chapter II. Best And Secondary Evidence. Section 8. Best Evidence Rule
From earliest times, in the production of evidence, courts have required to be produced the best evidence of which the case in its nature is susceptible, if obtainable. This is known as the best evid...
-Section 9. Pre-Requisites To Exclusion
Before evidence can be excluded as secondary, it must appear from the facts sought to be proved, or by the objector's evidence, that there is evidence of a higher order in existence, and of what it co...
-Section 10. Exceptions
This rule is subject to exceptions when the general convenience demands it, or where it does not promote the administration of justice for which it was primarily designed. And proof that a public offi...
-Section 11. Primary And Secondary Evidence Distinguished
As already stated, primary evidence is that kind of proof which affords the greatest certainty of the fact in issue. All evidence falling short of this in degree of certainty is called secondary evid...
-Section 12. Written Instruments
As applied in modern practice, the best evidence rule means little more than that the contents of a written instrument must be proved by the production of the written instrument itself, unless its a...
-Section 13. Original Document
The best evidence rule also requires the introduction of the original document. If some legal excuse for non-compliance with this rule be not shown, its requirements will be strictly enforced; and no ...
-Section 14. Exemplified And Certified Copies
The inconvenience of bringing public records into court, and their accessibility for comparison of copies, soon induced courts to adopt the practice of receiving duly exemplified copies thereof whenev...
-Section 15. Excuses For Not Producing Primary Evidence
The theory upon which secondary evidence is made admissible is, that the primary evidence is not within the offerer's power to produce; so the law requires only the reasonable assurance that the bette...
-Chapter III. Judicial Notice. Section 16. Definition
Judicial notice is that cognizance of matters of common knowledge, such as historical, geographical and governmental facts, the general usages of business, etc., which judges and juries may, under the...
-Section 17. Things Judicially Noticed
Upon request, courts will take judicial notice of the existence of recognized foreign governments, their flags and their seals of state, their public acts, decrees and judgments, exemplified under the...
-Section 18. Effect Of Judicial Notice
The effect of judicial notice is to dispense with the necessity of introducing evidence to prove the facts judicially noticed, and, upon request, the court will instruct the jury therein. ...
-Chapter IV. Hearsay Evidence. Section 19. What Constitutes Hearsay
Hearsay is not confined to words spoken, but the rule applies to writings as well. It may include any statement, verbal or written, the probative value of which depends partly or wholly upon something...
-Section 20. Exceptions
Upon principles of necessity and of public policy: (1) Declarations against Interest; (2) Declarations as to Pedigree; (3) Matters of General and Public Interest; (4) Res Gestae; (5) Ancient Possessio...
-Section 21. Declarations Against Interest
As applied in the law of evidence, declarations against interest simply mean statements or book entries made by a person, since deceased, who was not a party to the pending cause, and which was agai...
-Section 22. Entries In Course Of Official Duty
Entries made in the course of official duty and as enjoined by law are primary evidence, and are admissible, regardless of whether the person making the entries be living or dead. And this rule has so...
-Section 23. Books Of Account
Books of account, regularly and correctly kept in the ordinary course of business, in the United States, in the absence of controlling statute, upon preliminary proof of their accuracy, are admissible...
-Section 24. Bookkeeper As Witness
When the bookkeeper who made the entries is living and testifies that he made the entries in the usual course of business at the time of the transactions, although he remembers and can testify nothing...
-Section 25. Declarations As To Pedigree
As applied to human beings, pedigree is a genealogical table which records the relationship of families by degrees; an account or register of a line of ancestors. It embraces matters of descent, relat...
-Section 26. Matters Of Public And General Interest
A third exception to the rule excluding hearsay is, when the declarations relate to matters of public and general interest, the term public being used to denote that which concerns each and every su...
-Section 27. Declarations Of Res GestĘ
Spontaneous declarations, made simultaneously with a transaction or occurrence, and expressive of its character, motive, object, or cause, are regarded as res gestae and admissible in evidence along w...
-Section 28. Ancient Possessions And Documents
The term ancient document includes any deed or other instrument thirty years old or more. Such document, when it comes from proper custody, proves itself, and is admissible in evidence without the u...
-Section 29. Dying Declarations
Dying declarations are statements of relevant and material facts, made by a sane mind under the realization and solemn sense of impending death, by one who was about to die, and who has abandoned all ...
-Section 30. Admissions
The terms admissions and confessions are sometimes mistakenly used interchangeably. Strictly speaking, admissions usually apply to civil transactions and other matters of fact in criminal cases no...
-Section 31. Confessions
Admissions of guilt in criminal cases are to be received with great caution. The reason for this is the difficulties of the English language and the danger of mistakes in the use of words, inability o...
-Section 32. Character And Reputation
Character has been defined as the sum of the inherited and acquired ethical traits which give to a person his moral individuality. 7 The term reputation applies to the opinion which others have fo...
-Section 33. Market Value
The subject of market value is closely connected with hearsay, in that, in the usual routine of business, merchants, commission men and brokers, are wont to rely upon market and stock quotations and...
-Section 34. Testimony Of Witnesses Dead, Absent Or Disqualified
The question often arises whether the testimony of a deceased or absent witness given in a former action between the same parties is admissible in evidence. This question may arise concerning testimon...
-Chapter V. Presumptions. Section 35. Classification
Mr. Greenleaf, Sec. 14, divides presumptive evidence into two branches: Presumptions of law and Presumptions of fact. Presumptions of law, says Mr. Greenleaf, consists of those rules, which, in...
-Section 36. Particular Presumptions
Every person is presumed to be sane until the contrary appears. Insanity once being judicially established, is presumed to continue until the contrary is shown. In criminal cases, every person is pres...
-Section 37. False Presumptions
Many of the presumptions above enumerated are based upon no inference of fact, and are what are known as false presumptions of law. Among these may be mentioned the presumption of innocence, of a pr...
-Section 38. Presumptions Of Fact
When a fact has been established in a trial by evidence, the jury may properly be allowed to draw therefrom such inferences of fact as are logically de-ducible from such fact. It follows the system of...
-Chapter VI. Privileged Communications. Section 39. Between Attorney And Client
At common law, a legal adviser could not be compelled to disclose any lawful communication between himself and his client, such communications being regarded by the law as privileged. In fact, the law...
-Section 40. Physicians And Clergymen
At the common law, this privilege did not extend to physicians or clergymen, and in the absence of protecting statute they can be compelled to disclose every statement made to them in their profession...
-Section 41. State Secrets
The rights of parties litigant being subordinate to the rights of the public at large, there are some matters of public interest into which courts may not pry. The disclosure of secrets of state, such...
-Section 42. Self-Incriminating Evidence
Star chamber proceedings and inquisitorial methods in England at an early date taught the patriots of those stormy days the necessity of establishing a limit to the extent of the inquiry into the priv...
-Section 43. Between Husband And Wife
In view of the high importance of preserving intact the confidence and security of the marriage state, the law regards confidential communications between husband and wife as privileged, and refuses t...
-Chapter VII. Expert And Opinion Evidence. Section 44. Definition And Scope
Expert evidence is testimony given by one specially versed or skilled in a certain science, profession, or trade, concerning information beyond the range of ordinary knowledge and intelligence. Concer...
-Section 45. Qualification Of Experts
After first determining whether the question under investigation is a proper subject of expert inquiry, the next question for the court to decide is: Has the witness offered the necessary qualificatio...
-Section 46. Subjects Of Expert Inquiry
The following have been held proper subjects for the introduction of expert testimony: The care and handling of domestic animals; meaning of entries in books; agriculture and crops; diseases of men or...
-Section 47. Hypothetical Questions
The proper practice in examining an expert witness where his opinion is sought, is to propound to him a hypothetical question, assuming as true certain facts which comport with and seem to sustain suc...
-Section 48. Opinions Of Non-Experts
A non-expert may, after testifying fully as to his opportunities and means of knowledge, give his opinion on the following subjects: The sanity or apparent health of a person by him observed; speed of...
-Section 49. Medical And Scientific Books
The weight of authority seems to sustain the doctrine that medical and scientific books, even though they be standard authorities on the subjects to which they relate, including the U. S. Pharmacopoea...
-Section 50. Photographs And Skiagraphs
Photographs are generally admissible in evidence when they are shown to have been accurately taken, and to be correct representations of the subject in controversy, and are of such a nature as to thro...
-Section 51. Maps, Charts, Diagrams, Surveys
Maps made by authority of law and filed in the proper office are public documents, and when coming from their legal custodian, and duly certified by him as required by law, are receivable in evidence....
-Section 52. Compensation Of Experts
The question as to whether an expert witness is entitled to special compensation in addition to the ordinary witness fee provided by statute, and whether he can be compelled to testify in regard to ma...
-Section 52. Compensation Of Experts. Continued
12 Summers vs. State, 5 Tex. Ct. App., 365. 12 Rev. Stat. Ind., 1881, Sec. 504. 13 Citing 3 Am. & Eng. Ency. of Law, 2nd Ed.. 777. This decision of the Supreme Court of Alabama, in which all ...
-Chapter VIII. Burden Of Proof. Section 53. Definition And Nature
The burden of proof is the legal duty resting upon a party litigant, at some stage in the trial of a civil case, to introduce evidence of preponderating weight on an issue which he asserts, to overc...
-Section 54. Overcoming Prima Facie Case
Where the defendant pleads by way of confession and avoidance, after the plaintiff has introduced sufficient testimony to make out a prima facie case, the burden is then upon the defendant to establis...
-Chapter IX. Witnesses. Section 55. Competency Of Witnesses
A witness is a person who, having first been duly sworn or affirmed according to law, is orally examined before a court, judge, commissioner, or other officer, or an inquisitorial body, as to his know...
-Section 56. Accomplices And Accessories
Accomplices and accessories are competent witnesses against the accused, and though a conviction may be had upon the uncorroborated testimony of such accessory or accomplice, the testimony should be r...
-Section 57. Husband And Wife
It was the general rule of the common law that neither husband nor wife was a competent witness for or against the other. This rule was based upon grave reasons of public policy, having reference to t...
-Section 58. Children
The competency of children under fourteen years of age to testify rests in the discretion of the court, and depends mainly on the moral sense, intelligence and understanding of the individual. It is t...
-Section 59. Lunatics
The fact that a witness is not of sound mind does not in itself constitute ground for his exclusion. His testimony can properly be excluded only when his affliction is such that he is unable to retain...
-Section 60. Felons And Convicts
At common law, persons convicted of infamous crimes were incompetent as witnesses. Infamous crimes are generally denned to be those punishable by death or imprisonment in the penitentiary. The reason ...
-Section 61. Infidels And Atheists
At the common law, a person who had no religious belief, and who did not acknowledge, but openly and avowedly denied, the existence of a Supreme Being, and who did not feel himself accountable to any ...
-Section 62. Quakers
McKelvey, in his work on Evidence, Sec. 213, says: In the case of the sect of Quakers, so obnoxious to the early English churchmen, whose members refused to take the oath, some little difficulty was ...
-Section 63. Indians
By statute, in the early days many states refused to allow Indians to testify for or against white persons;15 but these statutes have all been repealed. The common law made no discrimination against t...
-Section 64. Chinamen
Formerly, in California, by statutory enactment, a Chinaman was rendered incompetent to testify for or against a white person on trial in a criminal case.16 That act is no longer in force., and everyw...
-Section 65. Negroes
It was also formerly held in some of the southern states that a negro was incompetent to testify for or against a white person;18 but the courts of such states have since generally held that the Act o...
-Section 66. Grand Jurors
Legal writers and sometimes courts have laid down the broad rule that members of the grand jury cannot 15 Harris vs. Doe, 4 Blackf. (Ind.), 369; Carroll vs. Pathkiller, 3 Port. (Ala.), 279. 16 Speer v...
-Section 67. Attorneys
An attorney, at the common law, in the absence of a disqualifying interest, was a competent witness for and on behalf of his client. It is the rule in all the states except Delaware, that a lawyer is ...
-Section 68. Judges
A judge cannot be allowed to testify in a case on trial before him, and his disqualification therein is absolute. The reasons for this rule are obvious. Imagine the awkward spectacle of a judge passin...
-Section 69. Petit Jurors
There seems to be no rule of law making a juror incompetent as a witness in a trial in which he has been empaneled. If otherwise not disqualified, it would seem that he may be sworn and examined as to...
-Section 70. Deaf And Dumb Persons
Persons deaf and dumb from birth were, in contemplation of the common law, presumed to be idiots. The experience of modern educators has taught that deaf mutes are possessed of more mental capacity an...
-Section 71. Examination Of Witnesses
The course to be pursued in the examination of witnesses is a matter resting largely within the discretion of the court. Whatever method will best elicit the truth from biased, disinterested and non-i...
-Section 72. Direct And Cross-Examination
Unless there is some cogent reason for departing from this rule, the usual method, after the witness has been sworn and his competency determined, is for the party offering him to interrogate him in w...
-Section 73. Impeachment Of Witnesses
It may perhaps be said there are five ways in which to impeach the testimony of a witness: (1) by disproving facts sworn to by him by the testimony of other witnesses; (2) by prior statements ...
-Section 74. Rights And Privileges Of Witnesses
A witness who is not a party to a suit or proceeding, and who has no interest in the result, is not entitled to the services of counsel, but courts have frequently indulged witnesses in this respect. ...
-Chapter X. Depositions. Section 75. Definition
A deposition is the testimony of a witness taken down in writing, or in stenographic notes and afterwards reduced to typewriting, under oath or affirmation, before a commissioner, judge, master in cha...
-Section 76. Usual Grounds For Taking
The deposition of a material witness may be taken: (1) when he is a non-resident of the State and beyond the jurisdiction of the court; (2) when he is about to depart from the State to remain permanen...
-Section 77. Application For Commission
Application to take a deposition is usually made by motion; statutory provisions, or the nature of the proceeding, may require it to be done by petition or bill in chancery. By statute, in most jur...
-Section 78. Form Of Notice To Take Oral Deposition
State of............ ............County. ss. .........Court of........County, ...........Term, A. D. 190.. John G. Small vs. Henry E. Little Assumpsit. General No...... Term No...
-Section 79. The Dedimus Potestatum
The commission must be duly entitled of the proper court and cause. Some statutes require the name of the commissioner to be inserted before the issuance of the dedimus potestatum, while under other s...
-Section 80. Form Of Deposition
The Deposition of...................., of the County of...............................and State of....................................., a witness of lawful age, produced, sworn and examined, upon ...
-Section 81. Interrogatories
The interrogatories may be either oral or written. In the event they are oral, the opposite party may appear in person or by counsel and cross-examine the witnesses. If the interrogatories are to be w...
-Section 82. How Taken
Courts insist with great strictness upon depositions being taken at the time and place designated in the commission, and some statutes fix a penalty to be paid to opposite side for failure to do so. W...
-Section 83. Form Of Certificate
State of.................... .....................County ss. I,.........................of the County of ..................and State of..................., a Comissioner duly appointed to tak...
-Section 84. Right To Cross-Examine
The rule that a party litigant shall have the right to confront and cross-examine the witnesses against him, applies with equal force to depositions. And it is a well-established principle that the de...
-Section 85. Effect Of Cross-Examination
By appearing and cross-examining the witnesses, or by filing cross-interrogatories under a commission, without objection thereto, a party waives all formal defects or irregularities, in the notice, or...
-Section 86. Failure To Attach Exhibits
Exhibits admitted in evidence or rejected should be returned, attached to or enclosed with the dedimus potestatum or deposition, after being properly identified. Some courts have held the failure to s...
-Section 87. Method And Grounds For Suppressing Depositions
The usual method of suppressing a deposition is by motion made in the manner required by statute. If no time is prescribed by statute, the motion to suppress should be made as soon as practicable afte...
-Section 88. Effect Of Witness Being Present At Trial
It is no objection to the reading in evidence of a deposition that the witness whose deposition was taken is within the jurisdiction of the court, or that he is in the court-room, at the time of trial...
-Section 89. Power Of Officer To Compel Attendance Of Witnesses And Production Of Books And Papers
Unless such power is expressly or by necessary implication conferred by statute, an officer or commissioner appointed by the courts of another state is powerless to compel the attendance before him of...
-Section 90. Filing The Interrogatories
If a certain time is prescribed by statute in which to file interrogatories, the provisions of the statute must be strictly followed; if no definite time is fixed, then they should be filed within suc...
-Section 91. Settling The Interrogatories
Where there is a dispute between the parties as to the propriety and materiality of the interrogatories, or any of them, and they are unable to reach an agreement concerning the same, the usual practi...
-Section 92. At What Stage Depositions May Be Taken
After the trial of an action has been commenced, depositions cannot ordinarily be taken, and especially not after the argument has been closed, except by-leave of court specially obtained, for good ca...
-Section 93. Former Depositions
The question, whether the deposition of a witness, taken in a former proceeding between the same parties, is admissible in evidence, frequently engages the attention of courts and counsel. The rule is...
-Section 94. Who May Offer Deposition
A party taking a deposition is not obliged to offer the same in evidence. Where properly taken and filed, he may, at his option, offer the whole, or any part, of the deposition in evidence, or he may ...
-Section 95. Witness Speaking Foreign Language
Where the witness speaks and understands only a foreign language, the better practice is to procure a competent interpreter, have him sworn to accurately and truly translate the interrogatories from E...
-Section 96. Depositions Of Resident Witnesses
In Illinois it is provided by statute, Sec. 24, Chap. 5, Rev. Stat., 1905, that, when the testimony of any witness, residing or being within this State, shall be necessary in any suit in chancery in ...
-Section 97. Affidavit To Be Filed Before Taking Depositions Of Witnesses Residing In Another County
State of Illinois, County of Cook. ss. In the Circuit Court of Cook County. November Term, A. D. 1908. Henry E. Smith vs. Hiram Jones. Case. Henry E. Smith, being first duly sworn, o...
-Section 98. Notice Before Taking Depositions Of Witnesses Residing In Another County Of This State
State of Illinois, County of Cook. ss. In the Circuit Court of Cook County. November Term, A. D. 1908. Henry E. Smith vs. Hiram Jones. Case. To Hiram Jones, the above named defendant: ...
-Questions. Common Law Pleading
Chapter I Page 11. 1. Define common law pleading. Page 12. 1. To what extent is this system in force in America at the present time? Chapter 11 Page 13. 1. Who may be a plaintiff ...
-Questions. Code Pleading
Chapter I Page 79. 1. What is the object of code pleading? 2. Give an outline of its history. Pages 80-87. 1. What is the principal difference as to the parties to an action under commo...
-Questions. Federal Procedure
Chapter I Page 101. 1. What are the constitutional provisions as to the Federal Courts? 2. What are the constitutional provisions as to the jurisdiction of the Federal Courts? Page 102....
-Questions. Evidence
Chapter I Page 139. 1. Define evidence. 2. What is competent evidence? 3. When is evidence relevant? 4. Discuss the materiality of evidence. Page 140. 1. Distinguish between e...
-Appendix A. To Common Law Pleading. Forms. Narr. And Cognovit In Debt. - 1st Endorsee Vs. Maker
State or Illinois, ..........County. ss. ..........Court of..........County, ............Term, A. D. 190.. ..............................Plaintiff......in this suit, by........... Attor...
-Narr. In Replevin. - For Wrongfully Taking
State of................. County of............... ss In the........Court of......County. ..........Term, 190.. ..................................w......summoned to answer wrongfully to...
-Declaration In Slander
State of.................. ..................County. ss In the........Court of......County. ..........Term, A. D. 190.. ....................................Plaintiff.... in this suit, b...
-Narr. - Labor, Goods, Wares, And Common Counts
Circuit Court of the United States. For the................District of................ Of the..................Term, A. D. 190...... United States of America, ........District of...... ss....
-Copy Of Instrument - And Account Sued On
.................................................................. To.................................................................... ..........Dr. To ...
-Plaintiff's Affidavit Of Amount Due United States Circuit Court
United States of America, ................District of................ VS. ............................. ...................Term, A. D. 190.. being duly sworn, says that the demand of the p...
-Narr. - Labor, Goods, Wares, And Common Counts, With Affidavit
State of................. ..................County. ss. In the........Court of........County. ............Term, A. D. 190.. Plaintiff.... in this suit, by..............................A...
-Plaintiff's Affidavit Of Amount Due
State of.................. ..................County. ss vs. In the........Court of........County. ..............Term, A. D. 190.. .................... ..................................
-Declaration In Ejectment
State of Illinois, .............County ss. In the.........Court of..........County, ..................Term, A. D. 19... Plaintiff... in this Suit by............................................. ...
-Declaration In Trover. Two Counts
In the..................Court of.....................County. State of............. .............County ss. .....................Term, A. D. 19... Plaintiff..., by......................., A...
-Declaration On Insurance Policy
..................Court,..................County, ................Term, 19........ State of........... ............County, ss. ...................................................plaintiff....
-Plea Of General Issue. - Affidavit Of Merits And Notice Of Set-Off
State of Illinois, ............County. SS. In the..........Court of............County, ats, Of the..................Term, A. D. 190.... ....................... ............................
-Copy Of Instrument - And Account Relied On Under The Foregoing Plea, And Notice Of Set-Off
................................................................................................................. ......................................................................................
-Plea Of General Issue - Affidavit Of Merits
State of Illinois. ..........County ss. In the............Court of...........Countt, of the..........Term, A. D. 19... ATS. ................ ................ And The said Defendant.., ....
-Copy Of Instrument..............AND Account Relied On
Under the Foregoing Plea, and Notice of Set-off. ..................................................................................................... ..............................................
-Replevin. - Plea Of Non-Detinet
State of........... ............County. ss. In the..........Court of........County. ..............Term, A. D. 19.. ATS. ............... And the Defendant.. by........................
-Plea And Affidavit Of Merits For One Defendant
State of Illinois, County of....... In the........Court of......County, ........Term, A. D. 19... ADS. ............... And the said Defendant........................................ ...
-Special Demurrer To Declaration
State of Illinois, .............County ss. In the.........Court of.........County, .........................Term, A. D. 190... vs .......................... ......................... ...
-General Demurrer To Declaration
State of Illinois, ............ County ss. In the............Court of.....County, vs. ................Term A. D. 190...... ......... ......... And the said Defendant. .,...................
-Appendix A. Federal Procedure. Rules Of The Supreme Court Of The United States. 1. Clerk
1. The clerk of this court shall reside and keep the office at the seat of the National Government, and he shall not practice, either as attorney or counsellor, in this court, or in any other court, w...
-2. Attorneys and Counsellors
1. It shall be requisite to the admission of attorneys or counsellors to practice in this court, that they shall have been such for three years past in the Supreme Courts of the states to which they r...
-3. Practice
This court considers the former practice of the Courts of King's Bench and of Chancery, in England, as affording outlines for the practice of this court; and will, from time to time, make such alterat...
-4. Bill of Exceptions
The judges of the Circuit and District Courts shall not allow any bill of exceptions which shall contain the charge of the court at large to the jury in trials at common law, upon any general exceptio...
-5. Process
1. All process of this court shall be in the name of the President of the United States. 2. When process at common law or in equity shall issue against a state, the same shall be served on the gove...
-6. Motions
1. All motions to the court shall be reduced to writing, and shall contain a brief statement of the facts and objects of the motion. 2. One hour on each side shall be allowed to the argument of a m...
-7. Law Library
1. During the session of the court, any gentleman of the bar having a case on the docket, and wishing to use any book or books in the law library, shall be at liberty, upon application to the clerk of...
-8. Writ of Error, Return and Record
1. The clerk of the court to which any writ of error may be directed shall make return of the same, by transmitting a true copy of the record, and of the assignment of errors, and of all proceedings i...
-9. Docketing Cases
1. It shall be the duty of the plaintiff in error or appellant to docket the case and file the record thereof with the clerk of this court by or before the return day, whether in vacation or in term t...
-10. Printing Records
1. In all cases the plaintiff in error or appellant, on docketing a case and filing the record, shall enter into an undertaking to the clerk, with surety to his satisfaction, for the payment of his fe...
-11. Translations
Whenever any record transmitted to this court upon a writ of error or appeal shall contain any document, paper, testimony, or other proceedings in a foreign language, and the record does not also cont...
-12. Further Proof
1. In all cases where further proof is ordered by the court, the depositions which may be taken shall be by a commission, to be issued from this court, or from any Circuit Court of the United States. ...
-13. Objections to Evidence in the Record
In all cases of equity or admiralty jurisdiction, heard in this court, no objection shall hereafter be allowed to be taken to the admissibility of any deposition, deed, grant, or other exhibit found i...
-14. Certiorari
No certiorari for diminution of the record will be hereafter awarded in any case, unless a motion therefor shall be made in writing, and the facts on which the same is founded shall, if not admitted b...
-15. Death of a Party
1. Whenever, pending a writ of error or appeal in this court, either party shall die, the proper representatives in the personalty or realty of the deceased party, according to the nature of the case,...
-16. No Appearance of Plaintiff
Where no counsel appears and no brief has been filed for the plaintiff in error or appellant, when the case is called for trial, the defendant may have the plaintiff called and the writ of error or ap...
-17. No Appearance of Defendant
Where the defendant fails to appear when the case is called for trial, the court may proceed to hear an argument on the part of the plaintiff and to give judgment according to the right of the case. ...
-18. No Appearance of Either Party
When a case is reached in the regular call of the docket, and there is no appearance for either party, the case shall be dismissed at the cost of the plaintiff. ...
-19. Neither Party Ready at Second Term
When a case is called for argument at two successive terms, and upon the call at the second term neither party is prepared to argue it, it shall be dismissed at the cost of the plaintiff, unless suffi...
-20. Printed Arguments
1. In all cases brought here on writ of error, appeal, or otherwise, the court will receive printed arguments without regard to the number of the case on the docket, if the counsel on both sides shall...
-21. Briefs
1. The counsel for plaintiff in error or appellant shall file with the clerk of the court, at least six days before the case is called for argument, twenty-five copies of a printed brief, one of which...
-22. Oral Arguments
1. The plaintiff or appellant in this court shall be entitled to open and conclude the argument of the case. But when there are cross-appeals they shall be argued together as one case, and the plainti...
-23. Interest
1. In cases where a writ of error is prosecuted to this court, and the judgment of the inferior court is affirmed, the interest shall be calculated and levied, from the date of the judgment below unti...
-24. Costs
1. In all cases where any suit shall be dismissed in this court, except where the dismissal shall be for want of jurisdiction, costs shall be allowed to the defendant in error or appellee, unless othe...
-25. Opinions of the Court
1. All opinions delivered by the court shall, immediately upon the delivery thereof, be handed to the clerk to be recorded. And it shall be the duty of the clerk to cause the same to be forthwith reco...
-26. Call and Order of the Docket
1. The court, on the second day in each term, will commence calling the cases for argument in the order in which they stand on the docket, and proceed from day to day during the term in the same order...
-27. Adjournment
The court will, at every term, announce on what day it will adjourn at least ten days before the time which shall be fixed upon, and the court will take up no case for argument, nor receive any case u...
-28. Dismissing Cases in Vacation
Whenever the plaintiff and defendant in a writ of error pending in this court, or the appellant and appellee in an appeal, shall in vacation, by their attorneys of record, sign and file with the clerk...
-29. Supersedeas
Supersedeas bonds in the Circuit Courts must be taken, with good and sufficient security, that the plaintiff in error or appellant shall prosecute his writ or appeal to effect, and answer all damages ...
-30. Rehearing
A petition for rehearing after judgment can be presented only at the term at which judgment is entered, unless by special leave granted during the term; and must be printed and briefly and distinctly ...
-31. Form of Printed Records and Briefs
All records, arguments, and briefs printed for the use of the court must be in such form and size that they can be conveniently bound together, so as to make an ordinary octavo volume. ...
-32. Writs of Error and Appeals Under the Act of February 25, 1889, Chapter 236
Cases brought to this court by writ of error or appeal under the Act of February 25, 1889, chapter 236, or under section 5 of the Act of March 3, 1891, chapter 517, where the only question in issue is...
-33. Models, Diagrams, and Exhibits of Materials
1. Models, diagrams, and exhibits of material forming part of the evidence taken in the court below, in any case pending in this court, on writ of error or appeal, shall be placed in the custody of th...
-34. Custody of Prisoners on Habeas Corpus
1. Pending an appeal from the final decision of any court or judge declining to grant the writ of habeas corpus, the custody of the prisoner shall not be disturbed. 2. Pending an appeal from the fi...
-35. Assignment of Errors
1. Where an appeal or a writ of error is taken from a District Court or a Circuit Court direct to this court, under section 5 of the act entitled An act to establish Circuit Courts of Appeals and to ...
-36. Appeals and Writs of Error
1. An appeal or a writ of error from a Circuit Court or a District Court, direct to this court, in the cases provided for in sections 5 and 6 of the act entitled An act to establish Circuit Courts of...
-37. Cases from Circuit Court of Appeals
1. Where, under section 6 of the said act, a Circuit Court of Appeals shall certify to this court a question or proposition of law, concerning which it desires the instruction of this court for its pr...
-Appendix B. To Federal Procedure. Rules Of Practice For The Courts Of Equity Of The United States. Preliminary Regulations
(1) The circuit courts, as courts of equity, shall be deemed always open for the purpose of filing bills, answers, and other pleadings, for issuing and returning mesne and final process and commission...
-Service of Process
(11) No process of subpoena shall issue from the clerk's office in any suit in equity until the bill is filed in the office. (12) Whenever a bill is filed, the clerk shall issue the process of subp...
-Appearance
(17) The appearance day of the defendant shall be the rule day to which the subpoena is made returnable, provided he has been served with the process twenty days before that day; otherwise, his appear...
-Bills Taken Pro Confesso
(18) It shall be the duty of the defendant, unless the time shall be otherwise enlarged, for cause shown, by a judge of the court, upon motion for that purpose, to file his plea, demurrer, or answer t...
-Frame of Bills
(20) Every bill, in the introductory part thereof, shall contain the names, places of abode, and citizenship of all the parties, plaintiffs and defendants, by and against whom the bill is brought. The...
-Scandal and Impertinence in Bills
(26) Every bill shall be expressed in as brief and succinct terms as it reasonably can be, and shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments, in haec verba...
-Amendment of Bills
(28) The plaintiff shall be at liberty, as a matter of course, and without payment of costs, to amend his bill in any matter whatsoever, before any copy has been taken out of the clerk's office, and i...
-Demurrers and Pleas
(31) No demurrer or plea shall be allowed to be filed to any bill, unless upon a certificate of counsel that in his opinion it is well founded in point of law, and supported by the affidavit of the de...
-Paeties to Bills
(47) In all cases where it shall appear to the court that persons who might otherwise be deemed necessary or proper parties to the suit cannot be made parties by reason of their being out of the juris...
-Nominal Parties to Bills
(54) Where no account, payment, conveyance, or other direct relief is sought against a party to a suit, not being an infant, the party, upon service of the subpoena upon him, need not appear and answe...
-Bills of Revivor and Supplemental Bills
(56) Whenever a suit in equity shall become abated by the death of either party, or by any other event, the same may be revived by a bill of revivor, or a bill in the nature of a bill of revivor, as t...
-Amendment of Answers
(60) After an answer is put in, it may be amended, as of course, in any matter of form, or by filling up a blank, or correcting a date, or reference to a document or other small matter, and be resworn...
-Exceptions to Answers
(61) After an answer is filed on any rule day, the plaintiff shall be allowed until the next succeeding rule day to file in the clerk's office exceptions thereto for insufficiency, and no longer, unle...
-Replication and Issue
(66) Whenever the answer of the defendant shall not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto on or before the next succeeding...
-Testimony. How Testimony is Taken
(67) After the cause is at issue, commissions to take testimony may be taken out in vacation as well as in term, jointly by both parties, or severally by either party, upon interrogatories filed by th...
-Testimony De Bene Esse
(70) After any bill filed, and before the defendant hath answered the same, upon affidavit made that any of the plaintiff's witnesses are aged and infirm, or going out of the country, or that any of t...
-Form of the Last Interrogatory
(71) The last interrogatory in the written interrogatories to take testimony, now commonly in use, shall in the future be altered and stated, in substance thus: Do you know, or can you set forth, any...
-Cross Bill
(72) Where a defendant in equity files a cross bill for discovery only against the plaintiff in the original bill, the defendant to the original bill shall first answer thereto before the original pla...
-Reference to, and Proceedings before, Masters
(73) Every decree for an account of the personal estate of a testator or intestate shall contain a direction to the master, to whom it is referred to take the same, to inquire and state to the court w...
-Exceptions to Report of Master
(83) The master, as soon as his report is ready, shall return the same into the clerk's office, and the day of the return shall be entered by the clerk in the order book. The parties shall have one mo...
-Decrees
(85) Clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission, may, at any time before an actual enrollment thereof, be corrected by order of the court o...
-Guardians and Prochein Amis
(87) Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or other persons who are under guardianship, or otherwise incapable to sue for themselves. ...
-Rehearing
(88) Every petition for a rehearing shall contain the special matter or cause on which such rehearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the r...
-Appendix C. To Federal Procedure. Admiralty Rules Of Practice For The Courts Of The United States
(1) No mesne process shall issue from the District Courts in any civil cause of admiralty and maritime jurisdiction until the libel, or libel of information, shall be filed in the clerk's office from ...
-Admiralty Rules Of Practice For The Courts. Part 2
(12) In all suits by material men for supplies or repairs or other necessaries, the libellant may proceed against the ship and freight in rem, or against the master or the owner alone in personam* ...
-Admiralty Rules Of Practice For The Courts. Part 3
(26) In suits in rem the party claiming the property shall verify his claim on oath or solemn affirmation, stating that the claimant by whom or on whose behalf the claim is made, is the true and bona-...
-Admiralty Rules Of Practice For The Courts. Part 4
(38) In cases of mariners' wages, or bottomry, or salvage, or other proceeding in rem, where freight or other proceeds of property are attached to or are bound by the suit, which are in the hands or p...
-Admiralty Rules Of Practice For The Courts. Part 5
Promulgated December Term, 1851. 13 How. VI. See Rev. Stat., Sec. 865. 50. When oral evidence shall be taken down by the clerk of the District Court, pursuant to the above mentioned section of the ...
-Admiralty Rules Of Practice For The Courts. Part 6
Promulgated May 6, 1872. 13 Wall. XII. Amended January 26, 1891. 137 U. S. 711. (55) Proofs of all claims which shall be presented in pursuance of said monition shall be made before a commissioner,...
-Appendix D. To Federal Procedure. Forms. General Libel In Case Civil And Maritime
District Court of the United States, For the..............District of............ Of the..................Term, A. D. 19... In Admiralty: To the Hon.................Judge of the District C...







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