Right to opposite Party not bound by answers. Husband and wife. Child under ten years. shall have heretofore been taken and used) upon the trial of any cause, and the same was, when so taken and used, competent and admissible under this section, the subsequent death or incompetency of such witness or of any other person shall not render such testimony incompetent under this section, but such testimony shall be received upon any subsequent trial of such cause. SEC. 66. Hereafter in any suit or proceeding in any court of law or equity in this State, either party, if he shall call as a witness in his behalf, the opposite party, employe or agent of said opposite party, or any person who at the time of the happening of the transaction out of which such suit or proceeding grew, was an employe or agent of the opposite party, shall have the right to cross-examine such witness the same as if he were called by the opposite party; and the answers of such witness shall not interfere with the right of such party to introduce evidence upon any issue involved in such suit or proceeding, and the party so calling and examining such witness shall not be bound to accept such answers as true. SEC. 67. A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, except in suits for divorce and in cases of prosecution for bigamy, and where the cause of action grows out of a personal wrong or injury done by one to the other, or grows out of the refusal or neglect to furnish the wife or children with suitable support, and except in cases of desertion or abandonment, and cases arising under act one hundred thirty-six of the Public Acts of nineteen hundred five, relating to marriage, and cases where the husband or wife shall be a party to the record in a suit, action, or proceeding, where the title to the separate property of the husband or wife so called or offered as a witness, or where the title to property derived from, through or under the husband or wife so called or offered as a witness, shall be the subject matter in controversy or litigation in such suit, action or proceeding, in opposition to the claim or interest of the other of said married persons, who is a party to the record in such suit, action or proceeding; and in all such cases, such husband or wife who makes such claim of title, or under or from whom such title is derived, shall be as competent to testify in relation to said separate property and the title thereto without the consent of said husband or wife, who is a party to the record in such suit, action or proceeding, as though such marriage relation did not exist; nor shall either, during the mar riage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage, but in any action or proceeding instituted by the husband or wife, in consequence of adultery, the husband and wife shall not be competent to testify. SEC. 68. Whenever a child under the age of ten years is produced as a witness, the court shall by an examination made by itself publicly, or separate and apart, ascertain to its own satisfaction whether such child has sufficient intelligence and sense of obligation to tell the truth to be safely admitted to testify; and in such case such testimony may be given on a promise to tell the truth instead of upon oath or statutory affirmation, and shall be given such credit as to the court or jury, if there be a jury, it may appear to deserve. witness. SEC. 69. No expert witness shall be paid, or receive as com Compensation pensation in any given case for his services as such, a sum in of expert excess of the ordinary witness fees provided by law, unless the court before whom such witness is to appear, or has appeared, awards a larger sum. Any such witness who shall Penalty for receiving or directly or indirectly receive a larger amount than such award, paying larger and any person who shall pay such witness a larger sum than sum. such award, shall be guilty of a contempt of court, and on conviction thereof be punished accordingly. of experts. additional SEC. 70. No more than three experts shall be allowed to Number testify on either side as to the same issue in any given case: Provided, The court trying such case, may, in its discretion, Proviso, permit an additional number of witnesses to testify as experts. number. SEC. 71. The provisions of the two preceding sections shall Application not be applicable to witnesses testifying to the established of last two facts, or deductions of science, nor to any other specific facts, but only to witnesses testifying to matters of opinion. Of Compelling the Attendance and Testimony of Witnesses. sections. plaintiff. SEC. 72. If the plaintiff in any action refuse to appear as Refusal of a witness on being personally subpoenaed, or being present refuse to swear or to testify, except where he is privileged from answering, the case shall be dismissed. If the defend- of defendant. ant refuse to appear on being personally subpoenaed, or being present refuse to swear or to testify, except where he is privileged from answering, the plaintiff's demand shall be taken as confessed, no set-off allowed, and judgment entered accordingly: Provided, That the provisions of this section shall not Proviso. be construed as to in any way abrogate or modify the provi- for contempt. sions of law with reference to the punishment of witnesses for contempt of court in refusing to testify or otherwise. SEC. 73. The service of a subpoena to compel the attend- Service of ance of any witness shall be made as follows: 1. The original writ under the seal of the court, or of the officer issuing the same, shall be exhibited to the witness; A copy of such writ, or a ticket containing its substance, shall be delivered to the witness; 3. The fees allowed by law to such witness for traveling to, and returning from the place where he is required to attend, and the fees allowed for one day's attendance, shall be paid or tendered to such witness. punishment subpoena. witness to attend. SEC. 74. Every person who shall be duly subpoenaed to at Duty of tend as a witness in any court within this State, or to attend any officer of a court of record, empowered to receive evidence, or any commissioner appointed by such court to take Failure. Warrant for apprehension. Refusal to answer, etc. Penalty. Commitment to specify cause. How warrant executed. provisions. testimony, or any referees or auditors appointed according to law to hear any cause or matter, or any notary public or commissioner before whom any affidavit or deposition is to be taken, shall be bound to attend according to the command of such subpoena and testify; and for every failure so to attend and testify, without a reasonable excuse, shall be deemed guilty of a contempt of the court out of which such subpoena issued, shall be responsible to the aggrieved party for the loss and hindrance sustained by such failure, and for all other damages sustained thereby; and shall be further liable to the aggrieved party in the sum of fifty dollars as addi tional damages, to be recovered in the same action. SEC. 75. In case of the failure of any witness so to attend as above provided, the court, judge or officer issuing the subpoena, upon due proof of the service thereof, and of the failure of such witness, shall issue his warrant to the sheriff of the county, to apprehend such witness and bring him before such judge or officer to be examined, or to bring him before any person named in a commission issued by a court of any other state or country to take testimony for the like purpose. SEC. 76. If any witness attending before any court, judge. officer or commissioner, pursuant to a subpoena, or brought before them, or either of them, shall, without reasonable cause refuse to be examined, or to answer any legal and pertinent question, or to subscribe his deposition after the same has been reduced to writing, the officer issuing such subpoena shall, by warrant, commit such witness to the common jail of the county in which he resides, there to remain until he submits to be examined, or to answer, or to subscribe his deposition, as the case may be, or until he be discharged according to law. SEC. 77. Every warrant of commitment issued by any court. judge or officer, pursuant to the provisions of this chapter. shall specify therein particularly the cause of such commitment, and if such commitment be for refusing to answer any question, such question shall be stated in the warrant. SEC. 78. Every warrant to apprehend or commit any witness, authorized by this chapter, shall be directed to the sheriff of the county where such witness may be and shall be executed by him in the same manner as process issued by courts of record. Application of SEC. 79. The preceding provisions in relation to the apprehension and commitment of witnesses, shall not apply to any case where other special provision is made by law for compelling the attendance of witnesses. Mode of administering oaths. Affirmation. SEC. 80. The usual mode of administering oaths now prac ticed 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 other wise provided. SEC. 81. 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. petency on SEC. 82. No person shall be deemed incompetent as a wit- No incomness, in any court, matter or proceeding, on account of his account of opinions on the subject of religion; nor shall any witness be religion. questioned in relation to his opinions thereon; either before or after he shall be sworn. authorized to SEC. 83. Whenever any oath or affidavit is or may be re- Who quired or authorized by law in any cause, matter or proceed take oaths. ing, except oaths to witnesses and jurors in the trial of a cause, and such other oaths as 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. oaths, etc. SEC. 84. Oaths, affidavits and depositions, in any cause, Commismatter or proceeding in any court of record, may also be sioner to take taken before any commissioner appointed by such court for that purpose. CHAPTER XVIII. Trials in Actions At Law and in Equity and Proceedings Incident Thereto. Term Calendar. calendar. SECTION 1. Whenever any cause at law or in chancery When cause pending in the circuit court of any county of this State shall to be placed on be at issue as to all the parties, or when a default shall have been entered or filed or when a return to any appeal shall be filed in said court, on or before the fourteenth day before the first day of any term of court, it shall be the duty of the clerk of said court to place the same upon the calendar for the next ensuing term of said court in its appropriate place, and unless sooner tried thereafter, to place said cause on the calendar for each succeeding term, until disposed of. Hereafter no notice of trial, or note of issue shall be neces- Notices of sary in any cause pending in said circuit courts. Causes shall notes of issue be placed upon the calendar in the order in which issue was abolished. joined, or appeal filed. trial and for want of prosecution. SEC. 2. All causes in which no action has been taken or Dismissal progress made for more than one year unless by reason of the business of the court the same shall not have been reached, shall be placed upon said calendar separate and apart from all other causes, under the following heading: "Causes in which no progress has been made for more than one year;" and on the first day of each term, any cause appearing under this heading shall be dismissed by the court for want of prosecution, but without prejudice, at the cost of the party Failure. Warrant for apprehension. Refusal to answer, etc. Penalty. Commitment to specify cause. How warrant executed. Application of provisions. Mode of administering oaths. Affirmation. testimony, or any referees or auditors appointed according to law to hear any cause or matter, or any notary public or commissioner before whom any affidavit or deposition is to be taken, shall be bound to attend according to the command of such subpoena and testify; and for every failure so to attend and testify, without a reasonable excuse, shall be deemed guilty of a contempt of the court out of which such subpoena issued, shall be responsible to the aggrieved party for the loss and hindrance sustained by such failure, and for all other damages sustained thereby; and shall be further liable to the aggrieved party in the sum of fifty dollars as addi tional damages, to be recovered in the same action. SEC. 75. In case of the failure of any witness so to attend as above provided, the court, judge or officer issuing the subpoena, upon due proof of the service thereof, and of the failure of such witness, shall issue his warrant to the sheriff of the county, to apprehend such witness and bring him before such judge or officer to be examined, or to bring him before any person named in a commission issued by a court of any other state or country to take testimony for the like purpose. SEC. 76. If any witness attending before any court, judge, officer or commissioner, pursuant to a subpoena, or brought before them, or either of them, shall, without reasonable cause refuse to be examined, or to answer any legal and pertinent question, or to subscribe his deposition after the same has been reduced to writing, the officer issuing such subpoena shall, by warrant, commit such witness to the common jail of the county in which he resides, there to remain until he submits to be examined, or to answer, or to subscribe his deposition, as the case may be, or until he be discharged according to law. SEC. 77. Every warrant of commitment issued by any court, judge or officer, pursuant to the provisions of this chapter. shall specify therein particularly the cause of such commit ment, and if such commitment be for refusing to answer any question, such question shall be stated in the warrant. SEC. 78. Every warrant to apprehend or commit any wit ness, authorized by this chapter, shall be directed to the sheriff of the county where such witness may be and shall be executed by him in the same manner as process issued by courts of record. SEC. 79. The preceding provisions in relation to the apprehension and commitment of witnesses, shall not apply to any case where other special provision is made by law for compelling the attendance of witnesses. SEC. 80. The usual mode of administering oaths now prac ticed 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. SEC. 81. Every person conscientiously opposed to taking an oath, shall, when called on to take an oath, be permitted |