JOSITY OF MIC EVIDENCE. 461 TITLE XXII. be observed in all cases in which an oath may be administered by law, CHAPTER 102 except in the cases herein otherwise provided. mode of swear SEC. 94. When the court, magistrate or other officer before whom When peculiar any person is to be sworn, shall be satisfied that such person has any ing to be adop particular mode of swearing, which is, in his opinion, more solemn or ted. obligatory than holding up the hand, such court or officer may adopt that mode of administering the oath. SEC. 95. Every person conscientiously opposed to taking an oath, When affirmashall, when called on to take an oath, be permitted, instead of swear- tion to be made. ing, solemnly and sincerely to affirm, under the pains and penalties of perjury. of witness not to SEC. 96. No person shall be deemed incompetent as a witness, in Religious belief any court, matter or proceeding, on account of his opinions on the be inquired into. subject of religion; nor shall any witness be questioned in relation to 1842, p. 21, (No. his opinions thereon, either before or after he shall be sworn. 18.) ter oaths. SEC. 97. Whenever any oath or affidavit is or may be required or Officers author. authorized by law, in any cause, matter or proceeding, except oaths ized to adminis to witnesses and jurors in the trial of a cause, and such other oaths as 1839, p. 224, § 26 are or may be required by law to be taken before particular officers, the same may be taken before any justice, judge or clerk of any court of record, circuit court commissioner, notary public or justice of the peace, or any register or master in chancery. SEC. 98. Oaths, affidavits and depositions, in any cause, matter or Commissioners proceeding in any court of record, may also be taken before any com- appointed by missioner appointed by such court for that purpose. courts. 1839, p. 224, § 26. Certain persons not excluded from giving evidence. Competency of Witnesses, and Examination of Parties in certain Cases. SEC. 99. No person shall be excluded from giving evidence in any matter, suit or proceeding, civil or criminal, by reason of crime, or for (of) any interest of such person in the matter in question, or in the event of the suit or proceeding in which his testimony may be of fered, unless such person be individually a party, named in the record, to such matter, suit or proceeding, or unless such matter, suit or proceeding be prosecuted or defended, either wholly or in part, in the immediate and individual behalf of such person, or unless such person be the husband or wife of such party; but when such person is a party, he may be a witness under the rules prescribed by statute. SEC. 100. Whenever any action, suit or proceeding shall be pending When parties, in any court of law, and either party shall make and file with the &c, may be exclerk of such court, or with the clerk of the court in which any issue nesses. joined therein shall be triable, an affidavit, setting forth that any facts, material to the issue or question to be tried, are within the knowledge of any other party to such suit or proceeding, and that there is no competent witness whose testimony he can procure, by whom such facts can be proved, the parties to such suit or proceeding, and any other persons interested in the event thereof, may be examined on oath, in relation to such facts. amined as wit to appear and SEC. 101. Upon the filing of such affidavit, such party or person in- How compelled terested, may be compelled to appear and testify in relation to the testify. facts set forth in such affidavit, in the same manner that other persons may be compelled to appear and testify as witnesses. SEC. 102. In all trials of actions before a justice of the peace, or in Examination of the county court, if the claim of the plaintiff or any part thereof, be parties to suits in denied by the defendant, it shall be lawful for the plaintiff to require and before justi county courts, ces, &c. CHAPTER 103. TITLE XXII. of the defendant to answer on oath to such claim; and if the defendant when sworn, deny the same, the plaintiff shall not have judgment, unless he establish his claim by legal evidence, and whenever the defendant in any such action shall allege matter of payment or set-off to the plaintiff's demand, or set up any other valid defence in law, he may, in like manner, require the plaintiff to answer such allegation or defence on his oath; and the plainiiff or defendant, when so required to be sworn by his adversary, shall be at liberty to testify concerning the whole matter in controversy, both as to the cause of action and defence, as a disinterested witness might do; and either party may, at the request of his adversary, be subpoenaed and compelled to attend and testify as aforesaid, in the manner, and under the same penalties, as other witnesses; and upon the refusal of either party, when subeœnaed by personal service of the subpoena, to appear, or appearing, upon his refusal to answer as a witness for the adverse party, as prescribed in this section, the court may enter judgment against the party refusing, as if the alleged claim or demand were confessed, or the allegation or defence admitted, as the case may be, and the deposition of either party residing out of the county where the suit is pending, may in such cases, be taken by his adversary, and used in evidence in the same manner as the depositions of other witnesses. What issues of fact to be tried in circuit court. In what counties issues of fact to be tried. In certain suits against public of CHAPTER 103. OF THE TRIAL OF ISSUES OF fact. General Provisions concerning Trials, and the Proceedings preparatory thereto. SECTION 1. All issues of fact which shall be joined in any probate court, shall be sent for trial and tried in the circuit court for the same county. SEC. 2. Issues of fact joined in such actions, shall be tried in the proper county, as follows: 1. Actions for the recovery of any real estate, or for the recovery of possession of real estate, actions for trespass on land, and actions for (of) trespass on the case for injuries to real estate, shall be tried in the county where the subject of the action shall be situated: 2. Actions of trespass for injuries to the person; and actions on the case for injuries to the person, or personal property, shall be tried in the county where the cause of action arose : 3. Actions of slander, for libels, and all other actions for wrongs, and upon contracts, shall be tried in the county where one of the parties shall reside, at the time of commencing such action; unless the court shall deem it necessary for the convenience of parties and their witnesses, or for the purposes of a fair and impartial trial, to order any such issues to be tried in some other county; in which case the same shall be tried in the county so designated. SEC. 3. In suits against public officers, or against any person speficers, judgment cially appointed to execute the duties of such officers for any act done to be rendered. by them by virtue of their offices respectively, and in suits against of discontinuance CHAPTER 103. other persons, who, by the command of such officers, or in their aid TITLE XXII. or assistance, do any thing touching the duttes of such office, which are required by law to be laid in the county where the fact happened, 9 Wend., 208-501. if it shall not appear on the trial, that the cause of such action arose within the county where such trial is had, the jury shall be discharged, and judgment of discontinuance shall be rendered against the plaintiff. ry, except in case SEC. 4. All issues of fact joined in any court proceeding according All issues of fact to the course of the common law, shall be tried by jury, except in to be tried by ju those cases where a reference shall be ordered, or where the parties of reference, &c. agree upon a case, and submit the facts to the court, or where the parties agree in writing to dispense with a jury. SEC. 5. Written notice of trial of every issue of fact in a circuit Notice of trial. court, shall in all cases be served at least fourteen days before the 5 Wend., 137. first day of the court at which such trial shall be intended to he had. SEC. 6. A note of the issue joined in any cause in a circuit court, Note of issue to shall be served on the clerk of such court, at least four days before clerk. the opening of such court. SEC. 7. It shall not be necessary, in any case, to issue or award any venire for the summoning of jurors to attend any circuit court. Of the Return and Summoning of Jurors. be served on Venire for jury not necessary. persons to serve 1841, p. 55. SEC. 8. The assessors and township clerk of each township, and the Assessors, &c. to assessor and alderman of each ward in the city of Detroit, shall, at make lists of the time appointed by law for said assessors to review their as- as jurors. sessment roll in each year, make a list of persons to serve as [petit 1840, p. 49, 50. jurors, and a list of persons to serve as] grand jurors for the ensuing year. SEC. 9. The said officers shall proceed to select from those assessed Selection how on the assessment roll of the township or ward for the same year, suitable persons, having the qualifications of electors, to serve as jurors; and in making such selection, they shall take the names of such only as are not exempt from serving on juries; who are in possession of thelr natural faculties, and not infirm or decrepit; of fair character, of approved integrity, of sound judgment, and well informed, and free from all legal exceptions. made. Number to be se SEC. 10. Such lists shall contain not less than one for every one hundred inhabitants of such township or ward, computing according lected. to the last preceding census, and having regard to the population of the county, so that the whole number of jurors selected in the county shall amount at least to one hundred, and not exceeding four hundred, one half of whom shall be designated as petit jurors, and one half as grand jurors. Officers to avoid selecting persons who served the preceding year. Duplicate lists to be made, and SEC. 11. In making such selection, the said officers shall avoid, as far as practicable, selecting any of the same persons who were actually drawn, and who served as jurors, during the preceding year. SEC. 12. Duplicate lists of the persons so selected, shall be made out and signed by the officers making such selection, or the major part how disposed of. of them, and within ten days thereafter one of each of said lists shall be transmitted to the county clerk, and the other shall be filed with the clerk of the township or assessor of the ward, as the case may be. SEC. 13. On receiving such lists, the county clerk shall file the same County clerk to in his office, and shall write down the names contained therein, on in jury boxes, deposite names separate pieces of paper, of the same size and appearance, as nearly as may be, and shall fold up each of such pieces of paper so as to con CHAPTER 103. TITLE XXII. ceal the name thereon, and deposite those on the lists of petit jurors in a box to be kept by him for that purpose, to be labelled "petit jury box," and those on the lists of grand jurors in a separate box, to be labelled "grand jury box." Persons returned to serve one year and until others are returned, On receivng new lists, clerk to de SEC. 14. The persons whose names shall be so returned, shall serve as such jurors for one year, and until other lists from the respective townships or wards, shall be returned and filed. SEC. 15. Upon receiving such new lists, the county clerk shall destroy ballots, &c. stroy the ballots deposited in the jury boxes for the year preceding, and deposite the ballots containing the names entered on such new lists in the same manner as above required. Juries, when to Clerk to give no to sheriff, &c. Duty of sheriff SEC. 16. At least fourteen days before the holding of any circuit court at which such juries shall be required by law, the clerk of the county where such court is to be held, shall draw from the petit jury box the names of twenty-four persons, and any additional number that may have been ordered by the court, to serve as petit jurors; and from the grand jury box, the names of twenty-three persons to serve as grand jurors. SEC. 17. At least three days before the drawing of such jurors, the tice of drawing clerk shall give notice to the sheriff and county and second judge of the county, of the day and hour when such drawing will take place. SEC. 18. At the time so appointed, it shall be the duty of the sheriff of the county in person, or by his under sheriff, and county and second judge, to attend at the clerk's office of the county to witness such drawing; and if any two of said officers shall attend at the time and place appointed, the clerk shall proceed in his (their) presence to draw the jurors. and judges to at tend drawing,&c. If two of the officers notified do not attend, clerk to adjourn draw ing, &c. Jury to be drawn Drawing, how conducted. SEC. 19. If two of the officers so notified do not appear, the clerk shall adjourn the drawing of such jurers until the next day, and shall, by written notice, require any justice of the peace of the county, to attend such drawing on the adjourned day. SEC. 20. If at the adjourned day, any two of the officers notified to attend the drawing of such jurors shall appear, but not otherwise, the clerk shall proceed, in the presence of the officers so appearing, to draw the jurors. SEC. 21. The clerk shall conduct such drawing as follows: 1. He shall shake each of the boxes containing the names of jurors returned to him, from which jurors are required to be drawn, so as to mix the slips of paper upon which such names were written, as much as possible: 2. He shall then publicly draw out of the said boxes, respectively, as many of said slips of paper containing such names of grand and petit jurors, or both, as shall be required by law, or specially ordered for such court: 3. A minute of the drawing shall be kept by one of the attending officers, in which shall be entered the name contained on every slip of paper so drawn, before any other such slip shall be drawn : 4. If, after drawing the whole number required for grand or petit jurors, the name of any person shall appear to have been drawn who is dead, or become insane, or who has permanently removed from the county, to the knowledge of the clerk or any other attending officer, an entry of such fact shall be made in the minute of the drawing, and the slip of paper containing such name shall be destroyed: 5. Another name shall then be drawn in place of that contained on the slip of paper so destroyed, which shall, in like manner, be enter- TITLE XXII. ed in the minutes of the drawing: 6. The same proceedings shall be had as often as may be necessary, until the whole number of jurors required shall have been drawn: 7. The minute of the drawing shall then be signed by the clerk and the attending officers and filed in the clerk's office : 8. Separate lists of the names of the persons so drawn for petit jurors, and of those drawn for grand jurors, with their places of residence, and specifying for what court they were drawn, shall be made and certified by the clerk and the attending officers, and shall be delivered to the sheriff of the county. CHAPTER 103. moned. SEC. 22. The sheriff shall summon the persons named in such lists Jury how sum respectively, to attend such court, at least six days previous to the sitting thereof, by giving personal notice to each person, or by leaving a written notice at his place of residence, with some person of proper age; and shall return such lists to the court, at the opening thereof, specifying those who were summoned, and the manner in which each person was notified. SEC. 23. It shall be the duty of the county clerk to furnish any person applying therefor, and paying the fees allowed by law for the same, a copy of the lists of jurors drawn to attend any court. Copy of lists to be furnished by clerk on application, &c. for neglecting to SEC. 24. The court to which any list of jurors shall be returned by Fines to be imthe sheriff, shall impose a fine, not exceeding twenty dollars, for each posed on jurors day that any person duly summoned as a juror shall, without reason- attend. able cause, neglect to attend; but if it appear by such return, that any person was notified by leaving a written notice at his place of residence, the court shall suspend the imposition of such fine until the defaulting juror shall be notified to appear and show cause why the same should not be imposed. SEC. 25. The following persons shall be exempt from serving as jurors, to wit: the governor, lieutenant governor, secretary, treasurer and auditor general of the state, the justices of the supreme court, all judges of courts of record, acting commissioner of internal improvement, commissioner of the land office, superintendent of public instruction, clerks of courts, registers in chancery, registers of deeds, sheriffs and their deputies, coroners, constables, all officers of the United States, attorneys and counsellors at law, and solicitors and counsellors in chancery, officers of the university, officers of colleges, settled ministers of the gospel, preceptors and teachers of incorporated academies, all superintendents, engineers and collectors of any canal or railroad authorized by the laws of this state, any portion of which shall be actually constructed and used, constant ferrymen, all members of any company of firemen organized according to law, all persons more than sixty years of age, and all other persons exempted by any other law of this state from serving on juries. SEC. 26. The court to which any person shall be returned as a juror, shall excuse such juror from serving at such court, whenever it shall appear, 1. That he is exempt from serving on juries by the provisions of the preceding section: or, 2. That he is a practising physician or surgeon, and has patients requiring his attention: or, 3. That he is a justice of the peace, or executes any other civil What persons exempted from serving as jurors. When court son from serving |