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.

SEC. 83. Whenever any oath or affidavit is or may be re- Who authorized to 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

Dismissal at end of

further time.

Copies of calendar.

Cases at issue later

term.

by whom it was brought into court, unless cause be then and there shown to the contrary.

SEC. 3. If further time for the trial of such issue be allowed by the court, and the plaintiff shall neglect to try the same within the time so allowed, the court shall dismiss the action as above provided.

SEC. 4. The clerk shall cause printed copies of said calendar to be provided at least five days prior to the first day of each term of court, and shall mail or deliver a copy of said calendar to each attorney, or firm of attorneys, representing any party in any action or proceeding that is upon the calendar.

SEC. 5. Cases in which issue shall be joined, or appeal filed. than fourteen after the fourteenth day before the first day of any term of days before any court, may be placed upon the calendar at any time before or during the term, at the request of the attorney for any party thereto, which said attorney shall forthwith give notice in writing to all of the parties to said cause, or their attorneys, of the fact of placing such cause upon the calendar, and upon the giving of such notice, after the lapse of fourteen days the same shall stand for trial the same as other

Cases in counties of 200,000 population.

Printed lists of certain cases ready for trial.

Witnesses at hearing

of motions.

cases.

SEC. 6. Whenever a cause, either at law or in chancery, shall be at issue in the circuit court for any county of this State having a population of two hundred thousand or more, either party or the attorney for any party, may request the clerk of said court to place the same upon a list to be by him prepared, of causes ready for trial, and said cause shall then be in position, after the lapse of one week, to be tried as the judges of said court may from time to time direct.

SEC. 7. The clerk of said courts in the counties mentioned in the preceding section, shall monthly prepare printed lists of enough cases ready for trial and at issue, under the direction of the court, as will suffice to keep said court busy for one calendar month, and the causes on said list shall stand for trial before said court without further notice, in their order as directed by said court, except the said court, may assign from day to day, a still smaller number to facilitate its work, said court being hereby authorized at any time it may find its monthly call exhausted to make another call and have the clerk of such court print the same at the expense of the county, in order that said work may be expedited in said courts.

Oral Evidence on Hearing of Motions.

SEC. 8. Upon the hearing of any motion or petition where any question of fact is involved, the court hearing such mo tion or petition, may in its discretion, if it deems it necessary in order to reach a just conclusion as to such facts, require the production of all, or any of the witnesses having knowledge of the matters of fact involved on such motion or petition for examination before him in open court.

Of Summary Judgments.

causes

SEC. 9. At any time after any cause arising upon contract In what or judgment, or statute shall be at issue, upon motion of the rendered. plaintiff, after the usual notice to the defendant, supported by the affidavit of the plaintiff, or any one in his behalf having knowledge of the facts, verifying the plaintiff's cause of action, and stating the amount claimed, and his belief that there is no defense to the action, the court shall enter a judgment in favor of the plaintiff, unless the defendant shall prior to, or at the time of hearing said motion, make and file. an affidavit of merits. Said affidavit of merits shall state Affidavit whether or not the defense claimed therein applies to the of merits. whole of the plaintiff's claim, and if not, it shall state definitely what item or items of the plaintiff's claim and the amount thereof, is admitted.

not made in

SEC. 10. If in any case it appear upon the trial thereof to the Affidavit satisfaction of the court, than any affidavit of merits made good faith. therein, for the purpose of preventing a summary judgment, or for the purpose of procuring a continuance, was not made in good faith, but was made solely for the purpose of delay, the court shall award to the plaintiff in the judgment rendered therein, double the amount of the costs taxable in the cause. - SEC. 11. Every variance between process, pleadings, or any Variances disregarded instrument in writing, recited or referred to in any other pro- unless cess, pleading or record, and every mistake in the name of calculated to any officer or other person, or in stating any day, month or year, or in the description of any property, in any pleading or record, shall be disregarded upon the trial of such cause, and 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.

mislead, etc.

tried.

SEC. 12. All issues of law shall be tried by the court, and Issues, how all the issues and questions of fact, shall be tried by the court, unless a jury be demanded by one of the parties, in at manner prescribed by the rules of the court: Provided, That Proviso, in all actions of tort, and in all other actions, the subject may order matters whereof are, in the opinion of the court, peculiarly jury. proper for the consideration of a jury, it shall be competent for the court to order the cause to be tried by a jury.

when court

within 60

SEC. 13. Upon the trial by the court of any question of Decision fact or law, at law or in chancery, or any incidental issue to be given arising therefrom, the decision of the court shall be given days. within sixty days from the time such issue or cause was submitted to him.

conclusions

SEC. 14. In giving the decision in actions at law, the Facts and court shall specify in writing the facts found and the conclusions of law therein, upon the request of either party. Such findings shall be forthwith filed with the clerk of the court and judgment entered thereon, and notice of the entry

Exceptions and assign

ment of error.

Tender, how

and when

of such judgment shall be given to the parties, or their attorneys, by said clerk.

SEC. 15. In such cases, either party may file exceptions to the findings of facts, that such findings are against the clear weight of evidence, and may assign error upon such exceptions, and if an appeal be taken, the same shall be reviewed by the supreme court.

Of Tender and Offer of Judgment.

SEC. 16. When any action at law shall be commenced, for may be made. the recovery of a sum certain, or which may be reduced to a certainty by calculation, or for a casual or involuntary trespass or injury, the defendant, in any stage of the proceedings before trial in such causes, or before such damages shall have been assessed, may tender to the plaintiff, or his attorney, any sum of money which such defendant shall conceive sufficient amends for the injury done, for which such action or proceeding was instituted, or sufficient to pay the plaintiff's demand, together with the costs of such action or proceeding, to the time of making such tender.

Interest and

costs not to be recovered.

Liability for costs.

Offer of judgment, how made.

Liability for costs.

Offer of damages at

SEC. 17. If it shall appear upon the trial of the cause, or apon the assessment of damages, that the amount so tendered was sufficient to pay the plaintiff's demand, or was a sufficient amends for the injury done, and the costs of the suit or proceeding up to the time of such tender, the plaintiff shall not be entitled to recover or collect any interest on such demand from the time of such tender, or any costs incurred subsequent to that time, but shall be liable to the defendant for the costs incurred by him subsequent to such time.

SEC. 18. In any action at law, founded upon contract for the payment of money in a court of record, the defendant may at any time before the trial, serve upon the plaintiff an offer, in writing, to allow judgment to be taken against him for the sum in said notice specified, with costs incurred up to the time of serving such offer; if the plaintiff accept the offer, and give notice thereof, in writing, within ten days, he may file the offer, with an affidavit of service of notice of acceptance. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence; and if the plaintiff fail to obtain a more favorable judgment, he shall not recover costs, but must pay the defendant's costs from the time of the offer.

SEC. 19. In any such action at law, the defendant may, specified sum. With his plea, serve upon the plaintiff an offer, in writing, that if he fail in his defense, the damage may be assessed at a specified sum; and if the plaintiff signify his acceptance thereof, in writing, within ten days, the issue upon the trial shall be whether the defendant is indebted to the plaintiff for the causes stated in the plaintiff's declaration, and the finding of the court or verdict of the jury shall be "for the plaintiff," or "for the defendant;" if such finding or verdict

Finding.

shall be for the plaintiff, he shall be entitled to judgment for the sum mentioned in the said offer and acceptance.

accepted.

SEC. 20. If the plaintiff does not accept the offer, he shall Offer not prove his damages as if it had not been made, and shall not be permitted to give it in evidence; and if the damages assessed in his favor shall not exceed the sum mentioned in the offer, the defendant shall recover his expenses incurred Expenses. in consequence of any necessary preparation or defense in respect to the question of damages; such expense shall be ascertained at the trial.

Of Jury Trials.

SEC. 21. In chancery cases if there be an issue of fact When may be impaneled in which, in the opinion of the court, shall render the interven- chancery. tion of a jury necessary or proper, said court shall, on request of either party, order a jury impaneled for the trial thereof, and the verdict of such jury may be used upon the hearing of the cause.

to clerk.

SEC. 22. In every case where a trial by jury may be de- Fee payable manded, the party making the demand shall pay to the clerk of the court the sum of three dollars before the impaneling of said jury shall be begun. Such sum shall be taxed in favor of the party paying the same, in case he recovers a judgment for his costs.

how had.

SEC. 23. Trials of fact, by jury, in every court of record of Trials of fact, common law jurisdiction, shall be had by jurors drawn or ordered summoned and returned, in the manner hereinbefore directed, except as otherwise provided by law; and no alien shall be entitled to a jury of part aliens or strangers, Allen. in any case whatever.

of clerk.

sheriff.

SEC. 24. It shall not be a cause of challenge to any panel Interest or array of jurors, in any cause, that the clerk of the county who drew them was a party or interested in such cause, or was counsel or attorney for, or related to either party therein. SEC. 25. It shall not be a good cause of challenge to the Interest of panel or array of jurors in any cause, if such jurors shall have been drawn in the manner herein before provided, that they were summoned by the sheriff who was a party, or interested in such cause, or related to either party therein, unless it be alleged in such challenge, and be satisfactorily shown, that some of the jurors drawn by the clerk were not summoned, and that such omission was intentional.

pay taxes, etc

SEC. 26. In penal actions, for the recovery of any sum, it Liability to shall not be a good cause of challenge to the jurors summoned, or to any officer summoning them, that such juror or officer is liable to pay taxes in any county, city, village, township or district, which may be benefited by such recovery. SEC. 27. On the trial of every action in which a county, Electors, etc., city or village, shall be interested, the electors and the in- jurors. habitants of such county, city or village, shall be competent jurors.

competent