be incompetent, on account of their interest in the result of the suit, their relation to the parties and upon other grounds not necessary to be enumerated. By the law of most if not all of the states, these objections which formerly went to the competency of the witness now go to his credibility. There still remains a rule which is almost universal which excludes from the consideration of the court and jury what are called privileged communications. These are communications between priest and penitent, husband and wife, physician and patient, attorney and client. Secrets of state are also privileged, and a witness can not be compelled to testify to any fact which would tend to expose him to prosecution for crime.

§ 564. Hearsay evidence.-Hearsay evidence is what a witness says he heard somebody else say, and such evidence is generally excluded. The reasons for the rule are obvious. To allow such evidence

would enable the party producing it to get before the jury the statements of persons who were not testifying under the sanction of an oath, and were not subjected to cross-examination. There is the danger also that the witness testifying to the statement may not have heard all of it, or may have remembered it imperfectly. It is a weak sort of evidence at best, and to admit it would be to furnish strong temptations to impose upon the court and jury false and fabricated evidence.

§ 565. Exceptions to the rule excluding hearsay evidence. There are, however, some declarations that in strictness might be called hearsay, which are admissible in evidence.

(1) Where the fact that the declaration was made and not its truth or falsity is the point in question. (2) Expressions of bodily or mental feelings where the existence of such feelings is the subject of inquiry.

(3) In cases of disputed pedigree, the declarations of the members of the family asserting kinship, entries in the family bible, inscriptions on mural tablets or tombstones are admissible.

(4) Declarations accompanying an act and which tend to show the intent, or any statement made at the time and forming a real part of the transaction.

(5) Dying declarations of the victim of a homicide, made under the apprehension of death, concerning the identity of the slayer and the circumstances of the killing.

(6) Where a statement is made by a witness out of court inconsistent with his testimony in court it can be proved to impeach his veracity.

(7) Where the statement is made by a party to the suit, or by his authorized agent, in relation to the matter in controversy.

§ 566. Examination of witnesses.-The order of the examination of witnesses is as follows: First, the direct examination by the counsel of the party calling the witness; second, the cross-examination by the counsel of the opposite party; and, third, the re-direct examination by the counsel of the party calling the witness. As a general rule leading questions, or questions which suggest the desired answer, can not be asked of a party's own witness. A witness who surprises the party who calls him by giving adverse evidence may be asked leading questions on

his direct examination, and the same privilege is allowed to a party who is compelled to call a witness who is hostile to him. On cross-examination leading questions are allowed. A witness may refresh his memory while testifying by referring to a written memorandum, but if he does so the opposite party has a right to inspect the memorandum and crossexamine the witness in relation thereto.

§ 567. Burden of proof.-The burden of proof in civil cases rests upon the party making an allegation, and the plaintiff must establish his right to a verdict by producing a preponderance of the evidence. Where the defendant makes an affirmative defense, the burden of proving it rests upon him. This burden is sometimes shifted from one party to the other.

ment.

§ 568. Arguments of counsel and instructions of the court. When the evidence is closed counsel address the jury in the order in which the evidence was produced, the party upon whom the burden of proof rests having the right to open and close the arguAfter the arguments are made, the judge instructs the jury in the rules of law which are applicable to the facts proved. Counsel have a right to request the court to give specific instructions, and if they state the law and are applicable to the case, it is the duty of the judge to give them. A refusal to give them, or the giving of erroneous instructions, furnish grounds for a new trial to the party injured by them.

§ 569. Deliberations of jury and verdict.-After the instructions are given the jury are conducted to a room where they are kept in charge of an officer of the court until they have unanimously agreed upon

a verdict. A verdict may be general or special. A general verdict is expressed in general terms, and finds the issue for the plaintiff or defendant. or defendant. A special verdict is where the jury, by request of the parties or of their own motion, write out a statement of the facts found by them in detail, leaving it for the court to decide upon the facts so found, whether the judgment should be given for the plaintiff or defendant. When they have so agreed they reduce the verdict to form, cause their foreman to sign it, and then bring it into court, where it is delivered to the clerk, who reads it and asks the jury if it is their verdict. If they assent it is recorded. If either party requests it the jury is polled, which is done by calling each juror separately by name and asking him if the verdict is his. If any juror answers in the negative they are sent back to their room for further deliberation. If the jury say they are unable to agree upon a verdict, and the judge is satisfied that such is the fact, he may discharge them, in which event the case must be tried again.

§ 570. Motion to set verdict aside and for a new trial. The party against whom the verdict is given may move to set it aside and for a new trial. Such motion may be based upon several grounds, as that the jury was guilty of corruption or gross misconduct; that one or more of the jurors had fraudulently procured himself to be impaneled and sworn after he had formed and expressed an opinion as to the merits of the case; that some one in the interest of the prevailing party had tampered with the jury; that the verdict was contrary to law or the evidence or that the court instructed the jury improperly as to the law.

To establish misconduct on the part of the jurors resort must be had to the testimony of witnesses other than jurors, it being a rule that no juror will be heard to testify against the verdict, but he is permitted to testify in support of it. If the motion is overruled judgment will be rendered according to the verdict, and this will stand as a final adjudication of the rights of the parties unless a higher court, for good cause shown, reverses the judgment.

§ 571. Motion in arrest of judgment.-Another way of getting rid of an adverse verdict is by a motion in arrest of judgment. This motion is based upon some apparent defect or omission in the record which makes it improper for the court to give judgment on the verdict, as where after verdict for the plaintiff it appears that his complaint does not contain allegations sufficient to constitute a cause of action. When the verdict is set aside on this motion, the plaintiff, if he desires to continue his suit, must amend his complaint, and when the issues are newly made the case will stand for re-trial. When a plea or answer confesses a cause of action and relies upon matter in avoidance which is insufficient, although found to be true by the verdict, to constitute a defense or bar to the action, the court will render judgment for the plaintiff, notwithstanding the verdict.

§ 572. Forms of judgments.-Of judgments there are various kinds: (1) Judgment by confession is given against a party who appears in court in person or by attorney and admits the plaintiff's claim. (2) Judgment by default is taken against a party who has been served with a summons to appear to an