2. Instructions, § 52*—use of mandatory words: Where an instruction is to direct the jury to find for the party that proves his case by a preponderance of the evidence, the direction should be mandatory by the use of the word “shall” or “should,” though the use of the word “will” will not be considered improperly employed.3. Carriers, § 525*—when testimony improperly stricken out as hearsay evidence. In an action against a street railway company to recover for a malicious assault by defendant’s conductor in ejecting plaintiff from one of its cars, plaintiff swore that she gave the conductor a transfer and she was corroborated as to such fact by another passenger who also swore that she told the conductor before ejecting plaintiff that she had paid her fare, and plaintiff also testified as to what said passenger told the conductor but the court struck out the testimony as hearsay evidence, held that the court erred in striking out the testimony for the reason it tended to show what information the conductor had before ejecting plaintiff, and was material and direct evidence bearing on the question of malice and the character of his subsequent conduct.