Attorneys may be compelled to produce writings. Harrisburg, etc., Co. v. Sloan, 120 Ind. 156. The refusal of a party to produce writings until compelled by order of court may be shown on trial. Lockwood v. Rose, 125 Ind. 588. Parties may, on exceptions, have an order for the production of writings, reviewed on appeal. Cleveland, etc., R. R. Co. v. Closser, 126 Ind. 348. Defects in a notice to produce writings will not usually be available error. Cleveland, etc., R. R. Co. v. Closser, 126 Ind. 348. An agreement to produce writings on the trial has the same effect as if an order was made on notice. Duringer v. Moschino, 93 Ind. 499. An appeal will not lie from an order requiring the production of writings. Western U. Tel. Co. v. Locke, 107 Ind. 9. 488. (480.) Inspection and copy, when ordered.-354. The court, or a judge thereof, may under proper restrictions, upon due notice, order either party to give the other, within a specified time, an inspection and copy of any book or part thereof, paper, or document in his possession, or under his control, containing evidence relating to the merits of the action, or the defense therein. If compliance with the order be refused, the court, on motion, may exclude such evidence, or punish the party refusing, or both. Notice of a motion for inspection must be given. Catterlin v. Armstrong, 79 Ind. 514. If the order of the court is not complied with, parol evidence of the contents of the writing may be given, or the suit may be dismissed. Silvers v. Junction R. R. Co., 17 Ind. 142; Whitman v. Weller, 39 Ind. 515. 489. (481.) Proof of service of process or notice.-344. The proof of the service of any process issued by the court, or of any notice required to be served upon any party, shall be as follows: First. If served by the sheriff, his certificate thereof. The certificate of the sheriff is proof of service of all process or notices served by him. Taylor v. Taylor, 64 Ind. 356; White v. Webster, 58 Ind. 233. The return of the sheriff is only evidence of the facts necessary to be set forth therein. Splahn v. Gillespie, 48 Ind. 397. This section only relates to proof of service, and not aз to how or by whom service may be made. Kyle v. Kyle, 55 Ind. 387. Second. By any other person, his affidavit thereof. Third. In case of publication, a printed copy, with the affidavit of the printer, his foreman or clerk, or of any competent witness. The bookkeeper of the publisher of a newspaper may make the affidavit. Andrews v. Ohio, etc., R. R. Co., 14 Ind. 169. The affidavit need not be signed by the affiant. Turpie v. Eagle Creek Co., 48 Ind. 45; Bonnell v. Ray, 71 Ind. 141. Fourth. The written admission of the defendant. The affidavit or admission must state the time and place of service. The word "defendant" in this clause means party. McCoy v. Lockwood, 71 Ind. 319. 490. (482.) All notices in writing-Service.-854. In all cases where notice is required by this act, it must be in writing, and may be served by the proper officer or any other person. 491. (483.) Filing of clerk presumptive evidence.-345. The clerk shall indorse upon every paper filed in his office or in open court, and upon every process returned to him or to the court, except summonses, the date of the filing and return; and the indorsement shall be presumptive evidence of the time of the filing and return. 496. More than three-Costs-Exception. 511. When executor or administrator com497. In county sary. Pre-payment unneces 498. Out of county-Pre-payment neces- 499. Attachment for non-attendance. 501. Fees-Mileage-Circuit, etc., courts. 503. Interpreters, pay of. 504. Competent witnesses. 505. Who are incompetent. petent. 512. Experts. 513. Religious belief-General moral char acter. 514. Credibility. 515. Party producing not to impeach-Exception. 516. Impeachment. 517. Party may be examined. 518. Time-Before whom-Notice. 506. When an executor or administrator 520. Evidence rebutted. 521. Penalty for refusing to attend. [1881 S., p. 240. In force September 19, 1881.] 492. (484.) Summons-Service.-263. The clerk of the proper court shall issue a summons for witnesses, upon the application of any party to the action. The summons may be served by the party or any person, or by the sheriff. The party, or any other person than the sheriff, shall not be entitled to fees for the service. When a summons is served by the sheriff, his return is proof of the service. When served by any other person, the service must be shown by affidavit. A witness can only testify from his recollection; but may refresh that recollection from memoranda, made by him at or about the time of the occurrence. Prather v. Pritchard, 26 Ind. 65. A witness is not bound to answer any question, the answer to which might subject him to punishment. Ford v. State, 29 Ind. 541. The separation of witnesses is in the discretion of the court. Porter v. State, 2 Ind. 435. If witnesses disobey the order of court as to a separation of witnesses parties can not be deprived of their testimony. Davis v. Byrd, 94 Ind. 525; State v. Thomas, 111 Ind. 515. Parties need not summons all their witnesses at the same time. Louisville, etc., R. W. Co. v. Dryden, 39 Ind. 393. Witnesses failing to attend after being summoned may be liable on account of damage sustained by their absence. Yater v. Mullen, 23 Ind. 562. Parties can not have themselves subpoenaed as witnesses and acquire the rights of a witness. Whittem v. State, 36 Ind. 196. Persons preventing the service of a subpœna may be punished for contempt. Haskett v. State, 51 Ind. 176. The cross-examination of a witness should be confined to his examination in chief. City v. Cobb, 21 Ind. 492; Higham v. Vanosdol, 101 Ind. 160; Hunsinger v. Hofer, 110 Ind. 390; Foster v. Gaston, 123 Ind. 96. A party desiring his own testimony will be held to the same diligence required concerning any other witness. Yater v. Mullen, 23 Ind. 562; Yater v. Mullen, 24 Ind. 277. A party who becomes a witness for himself stands like any other witness, except as to credibility. Fox v. Reynolds, 24 Ind. 46. 493. (485.) Service by copy, when.-264. Where a summons from any court of this state, for a witness, can not be served by reading, on account of the temporary absence of such witness from his last usual place of residence within the jurisdiction of the officer having such process, or when such witness so conceals himself within such jurisdiction that such process can not be read to him, the same may be served by leaving a copy thereof, certified to be a true one, by such officer at such residence; but in no case shall such service by copy be made when such officer has reasonable cause to believe that such witness has removed his residence without such jurisdiction. 494. (486.) No attachment except upon affidavit.-265. In no case shall an attachment issue against a witness upon whom such service by copy only has been made, until the party applying therefor, or his attorney, shall make affidavit in the court from which it is sought to be issued, that he has reasonable cause to believe, and does believe, that the witness against whom the summons issued has knowledge of the service thereof by copy in time to have obeyed its commands. 495. (487.) Summons, how issued-What to contain.-266. The summons shall be issued and attested by the clerk without seal, and one summons shall include all the witnesses required at the same time, residing in the same county. It can not be said that but one summons can be issued by the same party at the same term for witnesses in the same county. Louisville, etc., R. W. Co. v. Dryden, 39 Ind. 393. 496. (488.) More than three-Costs-Exception.-267. If any party summon more than three witnesses to prove the same fact, he shall pay the costs occasioned by the additional number of witnesses, unless the court shall otherwise order. The supreme court will not examine the record to see if more than three witnesses testified to the same fact. Louisville, etc., R. W. Co. v. Dryden, 39 Ind. 393. This section applies to impeaching witnesses. Davis v. Melvin, 1 Ind. 136. The number of witnesses that may be heard on a single point is much in the discretion of the court. Gardner v. State, 4 Ind. 632; Cox v. Pruitt, 25 Ind. 90; Fromer v. State, 49 Ind. 580. A party can not be limited to one witness upon a vital point in issue. born, 31 Ind. 249. Hubble v. Os If the number of witnesses has not been limited by the court, it is error to exclude material testimony. State, ex rel., v. Thomas, 111 Ind. 515. 497. (489.) In county-Pre-payment unnecessary.-268. Witnesses residing in the county where the court is held shall be compelled to attend in obedience to the summons, without payment or tender of fees being first made. 498. (490.) Out of county-Pre-payment necessary.-269. A witness shall not be obliged to attend before a court or judge out of the county where he resides, unless his legal fees for traveling to and from the court, and one day's attendance, are paid or tendered before or at the time of the service of the summons. 499. (491.) Attachment for non-attendance.-270. The attendance of all witnesses when duly summoned, and to whom fees have been paid or tendered, in cases required by law, may be enforced by attachment. A witness may be attached for contempt on the return of the sheriff showing an evasion of service. Wilson v. State, 57 Ind. 71. Sick witnesses should not be attached for failing to attend court. Cutler v. State, 42 Ind. 244. 500. (492.) When non-resident witness may demand fees.-271. At the commencement of each day after the first day, a witness attending a trial out of the county in which he resides shall be entitled to demand and receive the legal fees for that day in advance. If not thus paid, he is not compelled to attend or remain as a witness. [1877, p. 61. In force March 3, 1877.] 501. (493.) Fees-Mileage-Circuit, etc., courts.-27. Witness fees in the circuit, superior, and criminal courts shall be as follows, to wit: Every witness attending the circuit, superior, and criminal courts, in his own county, per day, one dollar and twenty-five cents. Every witness attending the circuit, superior and criminal courts, from another county, per day, one dollar and twenty-five cents. For each mile necessarily traveled in going and returning from court, from his residence, not to be computed beyond the limits of adjoining county, five cents. Parties can only claim witness fees when summoned by the adverse party. Goodwin v. Smith, 68 Ind. 301. Where one remonstrant against the establishment of a highway is used as a witness by another remonstrant, such witness is entitled to fees. Reader v. Smith, 88 Ind. 440. Witnesses attending in different causes on the same day may claim mileage in each cause. Vernon, etc., R. R. Co. v. Johnson, 108 Ind. 126. Witnesses attending court from any county in the state are entitled to their per diem and mileage from their residence, and such fees may be taxed to the losing party. Alexander. Harrison, 2 App. 47. [1881 S., p. 240. In force September 19, 1881.] 502. (494.) Oath-Form of.-272. Before testifying, every witness shall be sworn to testify the truth, the whole truth, and nothing but the truth. The mode of administering an oath shall be such as may be most consistent with and binding upon the conscience of the person to whom the oath may be administered. If a witness is not sworn, and the fact is discovered before the jury retires, he may be sworn and re-examined. Slauter v. Whitelock, 12 Ind. 338. If no objection is made to the testimony of a witness because he was not sworn the omission will be deemed waived. Slauter v. Whitelock, 12 Ind. 338; Stroup v. State, ex rel., 70 Ind. 495. In order to be ground for a new trial, it must be shown that a party was not guilty of laches in failing to have a witness sworn, and that his evidence was material and not true. Sheeks v. Sheeks, 98 Ind. 288. 503. (495.) Interpreters-Pay of.-273. Interpreters may be sworn to interpret truly whenever necessary; and they shall receive the same fees and mileage as witnesses. Persons may be appointed to interpret the testimony of a deaf and dumb person, and more than one interpreter may be appointed to interpret the testimony of the same witness. Skaggs v. State, 108 Ind. 53. Evidence as to what an interpreter stated was the testimony of a witness on a former trial can not be given except in special instances. Shearer v. Harber, 36 Ind. 536. 504. (496.) Competent witnesses. 274. - 274. All persons, whether parties to or interested in the suit, shall be competent witnesses in a civil action or proceeding, except as herein otherwise provided. The legislature has power at all times to regulate the competency of witnesses. Wilson v. Wilson, 86 Ind. 472. Deaf and dumb persons who can be communicated with by signs are competent witnesses. Snyder v. Nations, 5 Blkf. 295; Skaggs v. State, 108 Ind. 53. The incompetency of one party to a suit to testify does not render the other party incompetent. Dahoney v. Hall, 20 Ind. 264. The court must determine as to the competency of witnesses and may hear evidence on the subject. Duncan v. Welty, 20 Ind. 44; Nave v. Williams, 22 Ind. 368; Simpson v. State, 31 Ind. 90; City v. Coombs, 107 Ind. 75. 505. (497.) Who are incompetent.-275. The following persons shall not be competent witnesses: First. Persons insane at the time they are offered as witnesses, whether they have been so adjudged or not. A record of an inquest of insanity made in 1872 held not to be competent evidence to show that a person was insane and incompetent as a witness in 1881. Breedlove v. Bundy, 96 Ind. 319. The mental capacity of a witness is a question for the court. Carpenter v. Dame, 10 Ind. 125; Duncan v. Welty, 20 Ind. 44. Second. Children under ten years of age, unless it appears that they understand the nature and obligation of an oath. Children under ten years of age may testify when they understand the obligation of an oath. Blackwell v. State, 11 Ind. 196. The court alone must judge of the competency of a witness under ten years of age. Simpson v. State, 31 Ind. 90. Children over ten years of age are competent witnesses, and the jury must judge of their credibility. Holmes v. State, 88 Ind. 145; Duncan v. Welty, 20 Ind. 44. Third. Attorneys, as to confidential communications made to them |