tion of the court by demurrer or motion, according to the practice of the court where the action is pending. It will be seen that none of the defects above named go to the merits of the controversy, and most of them may be cured by amendment. An answer

in abatement is a dilatory answer, and ordinarily it must be filed and disposed of before the case is tried on its merits.

§ 555. Issues of fact and issues of law.-When the parties are at issue upon a question of law alone, the judge decides it. An issue of fact is submitted to a jury, unless the parties waive a jury and consent to a trial by the court.

§ 556. The jury.-A jury is a body usually of twelve men summoned from the residents or citizens of the county where the case is tried who are impaneled and sworn to try the issues in the case and to render a true verdict according to the law and the evidence. What is called the regular venire is a body of men summoned to serve as jurors generally during all or a portion of the term of court. A special venire is a body of men selected and summoned to try a particular case. When a regular or special venire is exhausted by challenges or other cause, without securing the requisite number, a new venire is issued or the number is made up from bystanders who have the requisite qualifications to serve as jurors. Before the jurors are sworn to try the case, either party may object to them as a body or to the jurors individually. The first objection may be based upon. an irregularity or defect in the manner of making up or serving the venire, or the misconduct or partiality of the sheriff by whom it is served. The second ob

jection is based upon the legal disqualification of the jurors objected to, or on account of their bias in favor of one of the parties. The first objection is called a challenge to the array, the second is called a challenge to the polls. There are two kinds of challenges to the polls. Where the ground of a challenge is the bias of the juror it is a challenge for cause. Where the challenge is without cause it is a peremptory challenge. The right to use the peremptory challenge in civil cases is limited to a small number, usually two or three. The right to the challenge for cause is without limit as to number, it being essential that all of the twelve jurors should be able to hear and decide the case without partiality or bias.

§ 557. Trial. The jury being impaneled and sworn to try the case, the counsel of the parties read the pleadings or state the substance of them to the jury, together with a summary of the evidence which they expect to produce in support of the issues.

§ 558. Evidence.-Evidence includes all the means by which an alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. Proof is the effect of evidence. Evidence consists of statements made by witnesses under oath in relation to matters of fact under inquiry, and of documents produced for the inspection of the jury and court. There are three degrees or kinds of evidence, viz., conclusive, prima facie, and evidence tending to prove. Conclusive evidence is such as when produced excludes all evidence to the contrary. Prima facie evidence is such as in the absence of evidence to the contrary is sufficient to establish the

existence of a fact. Evidence tending to prove a fact is any competent evidence which tends to establish the existence of a fact in issue. Competent evidence is that which the very nature of the thing to be proved requires, and is the best evidence that the nature of the case admits of. If the question is as to the contents of a written instrument, the instrument itself is the best evidence. If the instrument be lost or destroyed or beyond the jurisdiction of the court, oral testimony as to its contents may be given, and in such case it is competent, being the best that the nature of the case admits of. Sufficient or satis

factory evidence is such as will reasonably satisfy an unprejudiced mind of the existence of a fact. Corroborative evidence is additional evidence of the same character to support the same point as other evidence already given, and it may be a repetition of evidence given as to a fact, or evidence of another fact which makes the existence of the fact already testified to more probable. Cumulative evidence means more of the same kind of evidence and to the same point, and is a species of corroborative evidence. Relevant evidence is such as directly touches upon the issue the parties have made in their pleadings so as to assist in getting at the truth. Evidence is sometimes designated as "admissible," "proper," or "material," but the terms competent and rele. vant comprehend them all. Direct evidence is such as is given by persons who testify from personal knowledge of the facts. Indirect or circumstantial evidence consists of a fact or group of facts testified to by persons having a personal knowledge

of them, from which the existence of another fact or facts may be inferred.

§ 559. Functions of court and jury as to evidence. -Questions as to the competency and relevancy of evidence are decided by the court. The weight of the evidence, or what it proves, is a question for the jury.

§ 560. Things which need not be proved, or of which courts take judicial notice.-There is a class of facts which need not be proved, and which are presumed to be known to the judge and jury. They are facts of which courts take judicial notice, as of the existence of nations, of national flags and seals, of the titles of sovereigns or rulers, of public acts, decrees and judgments certified under the seal of foreign nations, of the public laws of the state in which the court is held, of the usages of commercial business, of the genuineness of a notary's seal, of the geographical boundaries of states and nations, of the distances of cities and towns from one another. short, the court will take judicial notice of what ought to be generally known within the limits of their jurisdiction, and if the memory of the judge is at fault, he may resort to books, maps, or other documents to refresh his memory.

In

§ 561. Written and oral evidence.- Evidence is written or oral. Written evidence consists of all written agreements, instruments, records, public or private, the production and contents of which tend to establish or disprove any material fact in issue. Oral evidence consists of the viva voce statements made by witnesses in open court under oath. Oral evidence is allowed where it relates to facts observed

by the witness, or in case of experts to matters of opinion. A deposition is the oral evidence of a witness who can not be produced at the trial, which has been reduced to writing by some competent person, in the presence of the parties. It is in the form of questions and answers. When properly taken upon due notice, and filed in court, it may be read to the jury.

§ 562. Attendance of witnesses, how procured.— The attendance of witnesses within the jurisdiction of the court is procured by the issuing and service upon the witness of a writ which is called a subpœna. This requires him to appear in court upon a day named and to remain in attendance until discharged by the court. The subpoena is usually served by the sheriff, by reading it to the witness in person or by leaving a copy for him at his residence. When served the officer returns the subpoena to the clerk with his indorsement thereon showing the time and manner of service. If, in addition to the testimony of the witness, the party calling him wishes him to produce at the trial any document in his possession, there is a clause inserted in the subpoena requiring him to bring with him the document named, giving a particular description of it, so that the witness may know precisely what is wanted. Such a subpœna is called a subpoena duces tecum. If a witness refuses to obey a subpoena, an attachment will be issued against him, and in a proper case he will be punished for a contempt of court.

§ 563. Competency of witnesses.-Before the enactment of recent statutes on the subject, many persons who are now competent witnesses were held to