ADMISSIONS AS AN EXCEPTION TO THE HEARSAY RULE

Is an extra-judicial verbal admission by a party to an action receivable in evidence as an exception to the hearsay rule? That rule generally excludes extra-judicial statements when offered to prove the truth of the matter therein asserted. If admissions are received for any other purpose, or if they are received not as evidence, but as substitutes for proof, the query should be answered in the negative

Res Gestae

A multitude of cases creates chaos in this subject. Even so great a scholar and lawyer as Simon Greenleaf was unable to clarify the topic when the decisions were fewer and simpler. Mr. (afterwards Mr. Justice) Pitt Taylor, the author of Taylor on Evidence, copied Greenleaf word for word; but when in controversy with Mr. Chief Justice Cockburn over Bedinglield\u27s case, had to confess that his text consisted of words full of sound, signifying nothing . He insisted, however, that the definition which the Chief Justice had framed left him enveloped in a fog, dense as that by which I am now, as I write, surrounded. James Bradley Thayer, after a consideration of the history of the phrase, worked out a very carefully reasoned theory which, it was said by his son, stood the test of his many years of later study. \u27 Mr. Wigmore, Mr. Thayer\u27s most distinguished disciple, accepts Sir Thayer\u27s history but completely ignores his theory. And Mr. Chamberlayne, another of Mr. Thayer\u27s scholarly pupils, only makes the confusion worse confounded in his voluminous work

Procedure and Evidence -- 1957 Tennessee Survey

PLEADING Generally: Pleadings are construed liberally in favor of the pleader,and this is particularly true when the attack is made after judgment. Use of Several Counts: It is entirely proper under prevailing practice to state the same cause of action in several counts, each setting forth a different theory or ground of recovery; but they must not be so framed as to make the declaration prolix and unduly repetitious. Same-Pleading Evidence of Ultimate Fact: In most jurisdictions with a typical code, allegations of evidence from which the ultimate fact may be deduced, whether or not the deduction is expressly averred by the pleader, are insufficent against a demurrer for failure to state a cause of action. ============================== PARTIES Parties-Proper-Generally: A person who makes an unconditionalbid at a sale of realty ordered by the chancellor which is accepted becomes a party to the proceeding. If he secretly intends to buy onlyafter inspection and thereafter refuses to perform after inspection,he is guilty of contempt of court. ============================== PRESUMPTIONS Generally: The current opinions of our courts do little to dispel the confusion which afflicts the subject of presumptions generally. Courts and legislatures continue to use the term conclusive presumptions ; but when the latter do so, the court is required to determine whether they mean what they say

The Hearsay Rule

Any attempt to define a legal concept makes advisable an inquiry into its origin and evolution. If it be a substantive law concept, the social purpose that is designed to serve—whether the avoidance of evils or the creation or furtherance of positive benefits—must be considered. If it be a concept of procedural law, the functions it is, or is thought to be, designed to perform in the process of reaching the factual and legal bases for satisfactory determination of disputes between litigants must be examined. It is proposed, therefore, first to look briefly at the causes which brought the hearsay rule into being, next to consider the dangers in testimony that it is designed to eliminate or limit, then to discuss the commnonly accepted statements, and finally to suggest a revised definition

Procedure and Evidence

Demurrer: The Tennessee cases reiterate the orthodox proposition that a demurrer admits the facts alleged or averred in the pleading to which it is interposed.\u27 It is perhaps unnecessary to note that this proposition is true only when the problem concerns the sufficiency of the allegations or averments in the pleading. In truth, the demurrer is merely a default as to the facts and a tender of issue on the law. If the demurrer is overruled and the action is for unliquidated damages, the plaintiff\u27s averment as to the amount of the damages is not taken as true; he must prove the amount. And if the demurrer to the declaration is overruled and the defendant then answers by a denial, the fact that he has previously demurred is not receivable in evidence against him as an admission. The rule as to the effect of a demurrer is applicable to bills in equity as well as to declarations at law. But the admission is strictly confined to the facts. It does not admit any matters of law suggested in the bill, or inferred from the facts stated

Procedure and Evidence -- 1954 Tennessee Survey

Generally: The strict rules of pleading are not applicable in a will contest,\u27 which is a proceeding sui generis and regulated by statute. Demurrer. A demurrer to a cross-bill in chancery on the ground that it states no cause of action upon which relief can be granted is a nullity, and should be stricken on motion. Plea in Abatement: Where the chancellor upon hearing a plea inabatement of another action pending for the same cause, found that the cause was substantially the same, and granted plaintiff permission to file the bill in the later suit as an amended or supplemental complaint, plaintiff had no ground for reversal because he had been given full opportunity to secure a result that would in no way prejudice him

Presumptions

Every writer of sufficient intelligence to appreciate the difficulties of the subject-matter has approached the topic of presumptions with a sense of hopelessness and has left it with a feeling of despair. The great Thayer attempted to bring order out of chaos by reducing the entire doctrine to a simple formula, for which he had very little authority in the judicial decisions, and which for a long time received no real judicial sanction but which later received much lip-service and recently has been rigorously applied in a few cases. Wigmore has been content to accept Thayer almost without qualification. Both these distinguished scholars exclude from the field of presumptions two classes of case in which the terminology of presumptions is frequently used. First, conclusive presumptions. It is too clear for argument that a so-called conclusive presumption is only a form: of expression for a positive rule of law. Given A, B is conclusively presumed , can mean nothing more than that the courts will attach to A all the legal consequences that they attach to B. Thus, to say that twenty years\u27 adverse possession of a tract of land raises a conclusive presumption of a lost grant to the possessor or his predecessor is really to say that such adverse possession gives title to the adverse possessor