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after a verdict therein, unless such variance or mistake be calculated to surprise or mislead the adverse party, and to prevent his making due preparation for a full answer on the merits, to the matter concerning which such variance or mistake shall have been made.

An Act in Relation to Testimony in Certain Cases.

[Approved April 2, 1849. Took Effect June 1, 1849. Laws of 1849, p. 307.]

baggage may

against R. R. Co.

the value

(4330.) SECTION 1. Be it enacted by the Senate and House of owners of lost Representatives of the State of Michigan, That on the trial testify in suits of any cause between any person and any Railroad Company for recovery of of this State, or the agent or servant of such Railroad Com- thereof. pany, wherein payment is claimed for any article or articles of traveling baggage retained or lost by said company, or their agent or servant, the owner of such baggage shall be permitted to testify in open Court in relation to the contents and value of the said article or articles of baggage; and such. testimony so given shall have the same effect as if the person so testifying had no interest in the result of such suit: Provided, No judgment shall be rendered on such testimony alone, for a greater sum than one hundred and fifty dollars.

such suit may be

(4331.) SEC. 2. Suit may be brought for any article or Against whom articles of baggage lost or detained, against the Railroad Com- brought. pany to whom the same was delivered, or against the agent or servant of such company to whom the same was delivered.

An Act Making Certificates of the Purchase of Public Lands Evidence of Possession.

[Approved December 30, 1834. Laws of 1834, Second Session, p. 37.]

purchase of dence of posses

(4332.) SECTION 1. Be it enacted by the Legislative Council certificates of of the Territory of Michigan, That certificates of the purchase public lands, eriof Public Lands, signed by the Receiver, shall be evidence in sion. any Court in this Territory, that the possession of the lands described in said certificate or certificates, is in the person or persons, his, her, or their heirs or assigns, holding said certificate or certificates, as against any person or persons, not having a better title to such land than actual possession.

swearing.

From Chapter One Hundred and Two of Revised Statutes of 1846.

ADMINISTERING OATHS AND AFFIRMATIONS.

General mode of (4333.) SEC. 93. The usual mode of administering oaths now practiced in this State, by the person who swears holding up the right hand, shall be observed in all cases in which an oath may be administered by law, except in the cases herein otherwise provided.

mode of swear

When peculiar (4334.) SEC. 94. When the Court, Magistrate or other ing to be adopted. Officer before whom any person is to be sworn, shall be satisfied that such person has any particular mode of swearing, which is, in his opinion, more solemn or obligatory than holding up the hand, such Court or officer may adopt that mode of administering the oath.

When affirmation to be made.

Religious belief

of Witness not to

1842, p. 21.

(4335.) SEC. 95. Every person conscientiously opposed to taking an oath, shall, when called on to take an oath, be permitted, instead of swearing, solemnly and sincerely to affirm, under the pains and penalties of perjury.

(4336.) SEC. 96. No person shall be deemed incompetent as be inquired into. a witness, in any Court, matter or proceeding, on account of his opinions on the subject of religion; nor shall any witness be questioned in relation to his opinions thereon, either before or after he shall be sworn.

Officers author

ized to adminis

1839, p. 224, Sec.

(4337.) SEC. 97. Whenever any oath or affidavit is or may ter oaths. be required or authorized by law, in any cause, matter or 26, and see Laws proceeding, except oaths to witnesses and jurors in the trial Sec. 21 Ib., p. of a cause, and such other oaths as are or may be required

of 1857, p. 91,

26, Sec. 3.

Commissioners appointed by Courts.

1839, p. 224, Sec.

26.

Certain persons

not excluded

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.

(4338.) SEC. 98. Oaths, affidavits and depositions, in any cause, matter or proceeding in any Court of Record, may also be taken before any Commissioner appointed by such Court for that purpose.

COMPETENCY OF WITNESSES, AND EXAMINATION OF PARTIES
IN CERTAIN CASES.

(4339.) SEC. 99. No person shall be excluded from giving from giving evi- evidence in any matter, suit or proceeding, civil or criminal,

dence.

2 Kernan, 373. by reason of crime, or 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 offered, 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.

etc., may be ex

nesses.

(4340.) SEC. 100. Whenever any action, suit or proceeding when parties shall be pending in any Court of law, and either party shall amined as Witmake and file with the Clerk of such Court, or with the Clerk of the Court in which any issue 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.

to appear and

(4341.) SEC. 101. Upon the filing of such affidavit, such How compelled party or person interested, may be compelled to appear and testify. testify in relation to the facts set forth in such affidavit, in the same manner that other persons may be compelled to appear and testify as witnesses.

parties to suits

etc.

See Chap. 117.

(4342.) SEC. 102. In all trials of actions before a Justice Examinations of of the Peace, or in the County Court, if the claim of the before Justices plaintiff or any part thereof, be denied by the defendant, it 2 Mich. Rep., 340. shall be lawful for the plaintiff to require of the defendant to Sec. 3765. 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 plaintiff 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 subpoenaed 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.

CHAPTER CXXVIII.

OF THE TRIAL OF ISSUES OF FACT.

GENERAL PROVISIONS CONCERNING TRIALS, AND THE
PROCEEDINGS PREPARATORY THERETO.

SECTION

4343. What issues of fact to be tried in Circuit Court.

4344. Issues of fact, where tried.

4345. In certain suits against Public Officers, judgment of discontinuance to be rendered.

4346. What issues of fact to be tried by Jury. 4347. Notice of trial.

4348. Note of issue to be served on Clerk. 4349. Venire for Jury not necessary.

OF THE RETURN AND SUMMONING OF JURORS.

4350. Assessors, etc., to make lists of persons to serve as Jurors.

4351. Selection how made.

4352. Number to be selected.

4353 Officers to avoid selecting persons who

served the preceding year.

4354. Duplicate lists to be made, and how disposed of.

4355. County Clerk to deposit names in jury boxeɛ.

4356. Persons returned to serve one year, and until others are returned.

4357. On receiving new lists, Clerk to destroy ballots.

4358. Juries, when to be drawn.

4359. Duty of Clerk relative to drawing of Jurors.

SECTION

4360. Duty of Sheriff.

4361. If two of the officers notified do not at-
tend, Clerk to adjourn drawing, etc.
4362. Jury to be drawn on adjourned day, if two
officers attend.

4363. Drawing, how conducted.
4364. Jury how summoned.

4365. Copy of lists to be furnished by Clerk on
application.

4366. Fines to be imposed on Jurors for neglecting to attend.

4367. What persons exempted from serving as Jurors.

4368 When Court shall excuse person from serving as a Juror.

4369 Ballot containing name of person excused,

how disposed of.

4370. Disposition of ballots after adjournment of Court.

4371. Proceedings in case of deficiency of names in box at drawing.

4372. When order for additional number of Petit Jurors may be made.

4373. Order to be filed with Clerk, and additional number drawn.

4374. When Court may order Jury to be drawn and summoned forthwith.

4375. Duty of Sheriff on receiving list, or copy of order.

4376. Talesman, when to be ordered and summoned.

SECTION

4377. Person summoned and neglecting to attend, subject to fine.

SPECIAL JURIES.

4878. When Circuit Court may order special Jury.

4379. Notice of striking Jury. 4380. Special Jury, how struck. 4381. Sheriff to summon Jury.

4382. Jury to be formed from persons summon

ed and attending.

4383. Proceedings in case Clerk is interested. 4384. Expense of striking Jury, by whom paid.

CF TRIAL AND ITS INCIDENTS.

4385. Trial of facts to be had by Jurors summoned, etc., as herein directed.

43S6. Clerk being interested, etc., not a cause of challenge.

4387. When interest of Sheriff not a cause of challenge.

4388. Liability to pay taxes, not a cause of challenge.

4389. On return of Jurors, Clerk to write names.
4390. Pieces of paper containing names to be
deposited in box.

4391. Jury for trial of issue, how drawn.
4392. First twelve drawn, etc., to try cause.
4393. Names of Jurors sworn, how disposed of.
4394. When names of Jurors sworn to be re-
turned to box from which they were
drawn.

SECTION

4395. When Court may order Jury to be drawn
from box containing ballots undrawn

4396. When Court may order Jury to be sum-
moned from by-standers.

4397. Box to be shaken before drawing Jurors.
4398. Proceedings if Jurors be absent when
called.

4399. Jury may find special verdict.

4400. Challenges.

4401. Jurors not to be questioned for verdict,

etc.

4402. Liability of Jurors for taking gift, etc.,
from any party.

4403. Liability of embraccor.

4404. Exception to opinion, etc., of Circuit
Court.

4405. Court may allow time to settle excep-
tions.

4406. Exceptions when to be signed.
4407. Exceptions not to prevent argument of
motion to set aside verdict, etc.
4408. When bill of exceptions to be filed with
Clerk of Circuit Court.

4409, 4410. When judgment as in case of non-
suit may be rendered.

4411. Effect of judgment for neglect to bring
cause to trial.

4412. Statement of continuance on record.
4413. View of premises, etc., by Jury.

4414. Expenses of view when to be taxed as
costs.

GENERAL

Chapter One Hundred and Three of Revised Statutes of 1846.

PROVISIONS CONCERNING TRIALS, AND THE PRO-
CEEDINGS PREPARATORY THERETO.

fact to be tried in

(4343.) SECTION 1. All issues of fact which shall be joined in what issues of any Probate Court, shall be sent for trial and tried in the Cir- Circuit Court. cuit Court for the same county.

(4344.) SEC. 2. Issues of fact joined in such actions shall be Issues of fact, tried in the proper county, as follows:

1. Actions for the recovery of any real estate, or for the recovery of the possession of real estate, actions for trespass on land, and actions 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 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 the purposes of a fair and impartial trial, to order any such issues to be tried in

where tried.

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