Edward Wilcox Hinton.

A Selection of cases on trial practice : at common law and under modern statutes online

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A Selection of Cases



At Common Law and Under
Modern Statutes


Professor of Law, University of Chicago




Copyright, 1915


Callaghan & Company





From an early period law schools have recognized the import-
ance of pleading and evidence and have offered well organized
courses in these subjects, but until recently the law of procedure
has been inadequately treated. In most schools, where the sub-
ject was noticed at all, it was covered by a lecture course on
general practice, or more frequently, the practice of a particular
jurisdiction, supplemented by more or less unsatisfactory work
in a "moot court" of some sort.

Several causes were responsible for this condition of affairs.
First, the absence of any text adapted to class room needs ; second,
the tendency to confuse the law of practice with the art of
advocacy, a subject difficult, if not impossible, to teach by
ordinary methods ; third, the assumption that practice was essen-
tially a local matter, to be picked up in the office and court room
after graduation. The result was that graduates came to the bar
well trained in the substantive branches of the law, but practically
untrained in the law of procedure. It is not surprising, there-
fore, that cases were badly tried and the records filled with
errors, resulting in a general demand for a reform of the practice.
No doubt this part of the law may be vastly improved, but the
editor is skeptical as to the success of "simplified procedure"
without adequately trained men to administer it, or as to any
real reform, not based on thorough understanding of the system
that has come down from the common law, modified by patch-
work legislation.




When the editor undertook to organize a course in practice
some years ago, it soon became apparent to him that the same
methods of study and instruction, which had proved satisfactory
in other branches of the law, should be applied to this perplexing
topic. As there was no collection of cases, it was necessary to
send the students to the original reports, an unsatisfactory method
even with small classes, because it is impracticable to have the
material under the student's eye during discussion in the class
room. An increasing number of students made it impossible to
rely on the library, and hence the present selection of cases has
been prepared to meet the needs of students. The material has
been collected during the last ten years for class room use.

Probably no two instructors would agree in all particulars as
to the precise topics which should be included in such a collec-
tion, or as to the relative amount of space which should be
assigned to each. In an attempt to solve the problem, the editor
has been guided by his own experience both as a trial lawyer and
teacher of practice, and by the following considerations : While
it might be theoretically desirable to treat the entire field of
adjective law as one connected whole, which would include plead-
ing and evidence in their relation to trials, there were many
practical reasons for excluding them from the present work.
There were satisfactory case books on those subjects by Pro-
fessors Thayer, Wigmore, Ames and others, which the present
editor could not hope to equal. Further, the student needs a
knowledge of the common law pleading at an early stage in his
course in order to understand much of the substantive law, which
is not true, or at least not to the same extent, in the case of
practice. Hence it seemed undesirable to encroach on existing
courses in pleading and evidence. The subjects, parties to actions,
remedies for defective pleading, and the amendment of the plead-
ings, might conceivably be treated under either pleading or
practice, but seem to fall more naturally into the pleading courses.
The subject of chancery practice can be best understood in con-
nection with the equity pleading. These exclusions leave the
following principal topics for this work : Process, defaults, con-
tinuances, conduct of the trial, trials without a jury, new trials
and bills of exceptions. The space allotted to each has been
based, as far as possible, on their relative importance and diffi-
culty. Since our procedure, like other branches of the law, has
been derived from the common law, English cases have been freely


used, and in fields where the subject has been developing, and
the former state of the law appeared to throw light on its present
condition, the matter has been traced back to a considerable
extent. The American cases have been taken from the Federal
Courts and from the leading common law and code states. It is
believed that a study of the cases will demonstrate that the law
of procedure, while superficially variant in details in the several
jurisdictions, is in the main surprisingly uniform, and no more
local than torts or contracts. The present compilation is, of
course, intended primarily for the use of students, but it is hoped
that it may also be found useful to practitioners. In conclusion
the editor wishes to acknowledge his indebtedness to the work of
the late Professor James Bradley Thayer for many of the ideas
he has attempted to embody in this collection.

Edward W. Hinton.
Law School
University of Chicago
September, 1915.





Seetion 1. Form and Requisites 1

(a) Summons 1

(b) Notice 19

Section 2. Service 37

(a) Common Law and Statutory Methods, . . 37

(b) Privilege and Exemption from Service.. 62

(c) Waiver of Process or Service 78

(d) The Service Required in Various Actions 108
Section 3. Returns 146

(a) Substance and Form 146

(b) Falsifying 154

(c) Amendment 162



Section 1. When Allowed 174

Section 2. Effect 181

Section 3. Setting Aside and Opening 189





Section 1. Selection of the Jury 222

(a) Challenges to the Array 222





Section 1. — Continued.

(b) Challenges to the Polls 235

1. For Cause 235

2. Peremptory 256

Section 2. Introduction of Evidence 263

(a) Preliminary Questions 263

(b) Offers and Objections 276

Section 3. Demurrers to the Evidence 286

Section 4. Direction of the Verdict 311

(a) When Proper 311

(b) The Motion or Request 355

Section 5. Nonsuits 374

(a) When Permitted or Directed 374

(b) Wlien Set Aside or Reviewed 401

Section 6. Argument of Counsel 412

Section 7. Instructions 430

(a) Questions for the Judge or Jury 430

(b) Rules Governing the Charge 513

(c) Requests and Exceptions 571

Section 8. Verdicts 590

(a) Return and Entry 590

(b) General Verdicts 609

(e) Special Verdicts 626

(d) Special Findings 637



Section 1. Waiver of the Jury 653

Section 2. Propositions of Law 663

Section 3. Special Findings 673



Section 1. Grounds 683

Section 2. Motion or Application 735





Section 1. Form and Requisites.

(a) Summons.

A writ is a latin letter of the king's, from thence in parch-
ment sealed with his seal. All writs have a salutation, Rex to
such a one salutem, and a conclusion expressing the name of the
one which is witness to the writs, called Teste (who in writs out
of the chancery is the king himself; in other writs the chief
justice of the place) the place, as apud Westmonasteriiim, etc.,
and the time, both day and year of the making of it, if it be
returnable, the day of the return is also appointed in it.^


George ike Third, etc. To the sheriff of , greeting:

Command C. D., late of , that justly and without

delay he render to A. B. the sum of £ ... . of good and lawful
money of Great Britain, which he owes to, and unjustly detains
from him, as it is said ; and unless he shall so do, and if the said
A. B. shall make you secure of prosecuting his claim, then sum-
mon by good summoners, the said C. D. that he be before us, on

wheresoever we shall be in England, (or, in C. P.

before our justices at Westminster, on ,) to shew

wherefore he hath not done it, and have there the names of the
summoners, and this writ. Witness ourself, etc. L. S.^

1 Finch's Law, Book IV, p. 237. = Tidd's Appendix, 20.

H. T. P.— 1 1

2 PROCESS. [Chap. I.

"The first process, or proceeding upon the original writ, in
actions of account, couvenant, debt, annuity and detinue, is a
summons, or warning to appear according to the exigency of the
writ; being nothing more than a copy of the writ itself, made out
by the plaintiff's attorney for the sheriff, and delivered by one
of his officers to the defendant, or left at the usual place of his
abode. "3

' ' It was a general rule or maxim of law, that the sanction of
the king's original writ, issued out of chancery, was an essential
preliminary form to the institution of a suit in the common law
courts. Non potest quis sine hrevi agere;'^ this was the prevail-
ing doctrine. The practice of proceeding by bill without the
original writ from chancery, in personal actions and in eject-
ment, formed an exception to the rule. The practice of com-
mencing an action by bill only obtained in each of the superior
courts in the case of certain persons, privileged in regard to their
official characters, or as officers of the courts, to be sued as being
already present in court. And in the king's bench and exchequer
the proceedings by bill in other cases was introduced by fictions,
and afterwards sanctioned and legalized by usage. But the great
variety of writs and bills led to so much intricacy and confusion,
that, as regards personal actions, the former writs, bills, and pro-
ceedings were abolished, and the writs of summons, capias, and
detainer were introduced by 2W. 4, c. 39, and which writs do
not, as formerly, set out the whole form and cause of action, but
are only adopted as modes of bringing the defendant into court,
and then, and not before, the declaration, stating the full form
and cause of action, is delivered, " '*

U. S. Compiled Statutes, 1913.

§ 1534. (R. S. § 911.) Sealing and testing of writs. All
writs and processes issuing from the courts of the United
States shall be under the seal of the court from which they
issue, and shall be signed by the clerk thereof. Those issu-
ing from the Supreme Court [or a circuit court] shall bear teste
of the Chief Justice of the United States, or, when that office is
vacant, of the associate justice next in precedence, and those

3 Tidd's Practice, 2 Am. Ed. p. 103. s Chitty's Pleading, 16 Am. Ed. *

* See III Blackstone Comm. * ji. p. 106.


issuing from a district court shall bear teste of the judge, or,
when that office is vacant, of the clerk thereof. The seals of
said courts shall be provided at the expense of the United States.

§ 1535. (R. S. § 912.) Teste of process, Day of. All proc-
ess issued from the courts of the United States shall bear teste
from the day of such issue. ^

§ 1580. (R. S. § 948.) Amendment of process. Any [cir
cuit or] district court may at any time, in its discretion, and
upon such terms as it may deem just, allow an amendment of
any process returnable to or before it, where the defect has not
prejudiced, and the amendment will not injure the party against
whom such process issues.

§1591. (R. S. §954.) Defects of form; amendments. No
summons, writ, declaration, return, process, judgment, or other
proceedings in civil causes, in any court of the United
States, shall be abated, arrested, quashed, or reversed for
any defect or want of form; but such court shall proceed and
give judgment according as the right of the cause and matter
in law shall appear to it, without regarding any such defect, or
want of form, except those which, in cases of demurrer, the party
demurring specially sets down, together with his demurrer, as
the cause thereof; and such court shall amend every such defect
and want of form, other than those which the party demurring
so expresses ; and may at any time permit either of the parties
to amend any defect in the process or pleadings, upon such con-
ditions as it shall, in its discretion and by its rules, prescribe.

Illinois Constitution and Statutes.

All process shall run : In the name of the People of the State
of Illinois ; and all prosecutions shall be carried on : In the name
and by the authority of the People of the State of Illinois ; and
conclude: Against the peace and dignity of the same. Const.
1870, Art. VI, § 33.

[1. Process — Form — When returnable.] § 1. J5e it enacted
hy the People of the State of Illinois, represented in the General
Assembly: The first process in all actions to be hereafter com-
menced in any of the courts of record in this State shall be a
summons, except actions where special bail may be required;

6 See also § 1536, set out in Peas-
lee V. Haberstro, 15 Blatch. 472,
post, p. 18.

4 PROCESS. [Chap. I.

which summons shall be issued under the seal of the court, tested
in the name of the clerk of such court, dated on the day it shall
be issued, and signed with his name, and shall be directed to the
sheriff, (or, if he be interested in the suit, to the coroner of the
county,) and shall be made returnable on the first day of the
next term of the court in which the action may be commenced.
If ten days shall not intervene between the time of suing out
the summons and the next term of court, it shall be made return-
able to the succeeding term. The plaintiff may, in any case, have
summons made returnable at any term of the court which may
be held within three months after the date thereof."

[8. Summons.] § 8. Upon the filing of every bill, the clerk of
the court shall thereupon issue a summons, tested, dated and
sealed as a summons in common law suits, directed to the sheriff
of the county in which the defendant resides, if the defendant be
a resident of this state, requiring him to appear and answer the
bill on the return day of the summons ; and where there are sev-
eral defendants residing in different counties, a separate sum-
mons shall be issued to each county, including all the defendants
residing therein.^

[9. Summons, When returnable.] § 9. Every summons in
chancery shall be made returnable to the next term of the court
after the date thereof, or the next succeeding term thereafter.

[10. Alias, pluries, etc.] § 10. If, in any suit in chancery,
the process shall not be returned executed on or before the
return day thereof, the clerk, if required, shall issue an alias,
pluries, or other proeess, without an order of the court therefor.

FORM of summons.

State of Illinois, |
Cook County. (
The People of the State of lUinois, to the Sheriff of said County,

We command you that you summon if he shall

be found in your county, personally to be and to appear before
the Superior Court of Cook County, on the first day of the term
thereof, to be holden at the Court House, in the City of Chicago,

7§1, Chap. 110, R. S. 1913. §38, and §§1756, 1757, 1759, R. S.

General Practice Act. 1909.

For corresponding provisions in » Chap. 22, R. S. 1913.

Missouri, see Const. 1875, Art. VI, Chancery Practice Act.


in said Cook County, on the first Monday of January next, to

answer unto in a plea of trespass on tlie case upon

promises, to the damage of said plaintiff, as it is said, in the sum
of twenty-five hundred dollars.

And have you then and there this writ, with an endorsement
thereon in what manner you shall have executed the same.

Witness, , Clerk of our said Court, and the Seal

thereof, at Chicago, aforesaid, this 1st day of December, A. D.,

Seal of the ] Clerk.

Superior Court ^
of Cook County!

Wisconsin Statutes, 1911.

[2629. Jurisdiction, How acquired.] § 2629. A civil action
in a court of record shall be commenced by the service of a
summons. From the time of such service or the issuance of a
provisional remedy the court shall be deemed to have acquired
jurisdiction and to have control of all subsequent proceedings.

[2630. Summons, Contents of.] § 2630. The summons shall
contain :

(1) The title of the cause, specifying the name of the court
in which the action is brought, the name of the county desig-
nated by the plaintiff as the place of trial, and the names of the
parties to the action, plaintiff and defendant.

(2) A direction to the defendants summoning them to appear
within twenty days after service of the summons, exclusive of
the day of service, and defend the action.

(3) A notice that in ease of failure so to do judgment will be
rendered against them according to the demand of the complaint.
It shall be subscribed by the plaintiff or his attorney with the
addition of his postoffice address, at which papers in the action
may be served on him by mail. There may, at the option of the
plaintiff, be added at the foot, when the complaint is not served
with the summons and the only relief sought is the recovery of
money, whether upon tort or contract, a brief notice specifying
the sum to be demanded by the complaint.

[2631. Form.] § 2631. Such summons ^ shall be substantially
in the following form :

9 The summons provided by the treated as process, though it serves
Wisconsin code is not technically the same purpose, Porter v. Vander-

PROCESS, [Chap. I.
Court County

A. B., Plaintiff '

C. D., Defendant.^
The State of Wisconsin, To the said defendant:

You are hereby summoned to appear within twenty days after
service of this summons, exclusive of the day of service, and de-
fend the above entitled action in the court aforesaid; and in
case of your failure so to do judgment will be rendered against
you according to the demand of the complaint, of which a copy
is herewith served upon you.

E. F., Plaintiff's Attorney.
P. 0. address County, Wis.

If the complaint be not served with the summons the words
' ' of which a copy is herewith served upon you ' ' may be omitted
or erased.


38 Missouri, 449. [1866.]

Wagner, Judge, delivered the opinion of the court. Plaintiffs
instituted suit in 1862, in the Jefferson County Circuit Court,
against the defendants, on a promissory note. A summons in
the usual form, except that it did not run in the name of the
State of Missouri, was issued and served upon the defendants.
There was no appearance on the part of the defendants, and
judgment was duly given against them in behalf of the plaintiffs.
The summons commenced, "To the sheriff, etc.," and not "The
State of Missouri to the Sheriff," as prescribed by the Constitu-
tion, and this is the only error urged for a reversal. It is
insisted by the counsel for the defendants in error, that as no
exceptions were taken, or motion made for a new trial, in the
court below, this court cannot take cognizance of the matter

cook, 11 Wis. 70; see also McKenna the Federal Statute, Middleton

V. Cooper, 79 Kans. 847, post, p. 28. Paper Co. v. Rock River Co., 19 Fed.

But summons from a Federal court 252.
sitting in Wisconsin is governed by

Sec. 1.]


here. In the ease of Bateson v. Clark, 37 Mo. 31, the distinction
between what is properly matter of error and exception was
briefly examined and pointed out, and the rule laid down, that
error apparent on the face of the record, which includes the
pleadings, summons and judgment, may be taken advantage of
by writ of error in this court whether any motion was made or
exceptions taken in the court below or not.

It is not contended that the writ was entirely void by reason
of not running in the name of the State, but that it was simply
voidable.^ Undoubtedly it would have been quashed on motion

1 McGrath, J., in Forbes v. Dar-
ling, 94 Mich. 621 (1893): The
validity of the foreclosure proceed-
ing is attacked on the ground that
the subpoena issued in the cause,
and returned as served, was not
styled, "In the Name of the Peo-
ple of the State of Michigan. ' '
The subpoena was returned, served,
but Francina Forbes did not appear,
and the bill was taken as confessed.
The statute (§ 7290) provides that
the style of all process from courts
of record in this State shall be, * ' In
the Name of the People of the State
of Michigan. ' ' Section 35 of article
6 of the Constitution provides that
the style of all process shall be, ' ' In
the Name of the People of the State
of Michigan." In Tweed v. Met-
calf, 4 Mich. 579, and again in
Wisner v. Davenport, 5 Id. 501, it
was insisted that certain tax rolls
were void, because the warrant to
the township treasurer was not
styled, "In the Name of the People
of the State of Michigan ; ' ' but
the Court held that the common-
law definition of the term ' ' proc-
ess" is a writ issued by some court
or officer exercising judicial powers,
and, further, that the term "proc-
ess" was intended to mean writs is-
sued in the exercise of that judicial
power created and established by
the Constitution.

In Johnson v. Insurance Co., 12
Mich. 216, the objection was made
that the scire facias was not tested,
' ' In the Name of the People of
the State of Michigan." The Court
held that neither the Constitution
nor the statute required the writ to
be so tested; that the objection,
which was a purely technical one,
was itself insufficiently taken; and
that it was therefore unnecessary to
determine whether the Constitution
could be satisfied by a substantial
compliance therewith. There the
scire facias was styled as follows:
' ' The People of the State of Michi-
gan ; " and the Court held that the
fact that the words ' ' In the Name
of the People of the State of Michi-
gan ; ' ' were inserted in the Consti-
tution between inverted commas
favored the idea that the phrase
must be used verbatim.

In the present case the caption
of the process was as follows:
"State of Michigan.

' ' The Circuit Court for the
County of Newaygo, in Chan-
cery. ' '
' ' To Francina Forbes — Greeting. ' '

This is not even a substantial
compliance with this provision of the
Constitution. The object of this
provision undoubtedly is to make
this style the distinguishing feature
of all process. The requirement is

8 PROCESS. [Chap. I.

ill the court below, or it might have been amended on a direct
application for that purpose. It has been held that the provi-
sions of the State Constitution requiring all writs and process to
run in the name of the State of Missouri is merely directory, and
therefore an omission to comply with the requirements would be
merely irregularity — Davis v. Wood, 7 Mo. 162. Now the statute
declares that when a verdict shall have been rendered in any
cause, the judgment thereon shall not be stayed, nor shall the
judgment upon such verdict, or any judgment upon confession,
nUiil elicit, or upon failure to answer, be reversed, impaired or
in any way affected for any default or defect of process. The
process here was certainly defective; it might have been taken
advantage of at the proper time, but, as the parties did not avail
themselves of the defect, it is cured by virtue of the statute. —
R. C. 1855, p. 1255, § 19.

The other judges concurring, the judgment will be affirmed.


6 Connecticut, 130. [1826.]

This was an action on the case, for a false return of a writ of
attachment against the plaintiff. The declaration stated, That
on the 16th of September, 1823, a writ of attachment was issued,
in favour of Benjamin Weed, against the plaintiff, on a promis-
sory note ; that it was directed to the defendant, as an indifferent
person, by Benjamin Weed, jun., a justice of the peace, who
signed the writ ; that it was delivered to the defendant to execute ;
that the plaintiff had a good defence to the action, of which he
had neither notice nor knowledge ; but that the defendant fraudu-

constitutional, and the defect jur- Complainants are entitled to the

isdictional. costs of both courts.

The decree below must therefore The other justices concurred,

be reversed, and defendants en- In State Bank v. Buckmaster, 1

joined from proceeding to sale un- 111. 176 (1826), it was held that

der the decree for foreclosure, with- such an omission might be supplied

Online LibraryEdward Wilcox HintonA Selection of cases on trial practice : at common law and under modern statutes → online text (page 1 of 76)