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. § 676. 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 argument. After 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. § 677. 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. 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. § 678. 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. § 679. 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 retrial. 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. § 680. 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 action and fails to do So. (3) Judgment upon nonsuit is taken against a plaintiff who, after bringing his suit, fails or refuses to prosecute it. (4) Judgment upon demurrer is where an issue of law raised by demurrer is decided by the court, and the party against whom the decision is made refuses to proceed further, in which case judgment is rendered against him. (5) Judgment upon the verdict is where the court enters upon the record its sentence in accordance with the verdict. (6) An interlocutory judgment is a judgment which decides not the cause, but only settles some intervening matter relating to the cause. (7) A final judgment is a judgment which disposes of the whole merits of the cause and leaves nothing for further consideration of the court. § 681. Appeals and writs of error.-After final judgment, the defeated party, if not content, goes to a higher court upon an appeal or writ of error. By the practice in some states an appeal takes the whole case to a higher court, where it is tried again on the merits. In other states an appeal to the higher court is for the purpose of having the record reviewed, to see if the proceedings of the court below have been according to law. A writ of error removes the cause from the court where final judgment was given, and the record is reviewed for the purpose above named. In either case, upon appeal or error, the judgment of the court below is affirmed, reversed or modified, and the cause is then sent to the court where the judgment was entered to be proceeded with or disposed of according to the decision of the higher court. § 682. Execution. When the case is finally adjudicated and all motions and appeals and writs of error are disposed of, the successful party is entitled to have his execution, which is a process issuing out of the court where judgment is given, directed to the sheriff and requiring him to satisfy the judgment by seizure and sale of the property of the party against whom the judgment is rendered. The manner in which this process is to be executed depends upon the provisions of the statutes on that subject. con § 683. Contempt.-Contempt is disorderly, temptuous or insolent language or behavior in the presence of a legislative or judicial body tending to disturb its proceedings or to impair the respect due to its authority; or a disobedience to the rules or orders of such a body which interferes with the due administration of the law; or speaking or writing contemptuously of the court or judges acting in a judicial capacity; or by printing false accounts and disrespectful comments upon the court concerning causes then on trial. The power to punish for contempt is inherent in courts, though in many states laws have been enacted which define and limit the power, and in some cases provide for appeals. The power of legislative bodies to punish for contempt does not reside in inferior legislative bodies, such as town councils. Contempt of court may be committed by inferior judges or magistrates, who refuse to obey the lawful orders of the superior courts; by sheriffs or other officers of the court in oppression or neglect of duty; by attorneys in breach of decorum or acts of gross injustice; by jurors in misconduct after they are impaneled and sworn; by persons summoned as witnesses refusing to obey the summons; by editors and publishers who, pending a cause, print |