1. Though not to facts occurring prior to the appointment of such guardian, 29 O. S. 85, or to the death of testator or intestate, 13 O. S. 525; 11 O. S. 624; 22 O. S. 208; 2 D. 41, 46, though the testimony is submitted by deposition, 1 D. 517; 16 O. S. 220. But an administrator or executor may testify in his own behalf to conversations or transactions of deceased, 21 O. S. 658, and he is a competent witness for either party in a hearing on exceptions to his account, 16 O. S. 273. When the protection of the section was not extended to "adult heirs," it was held that a grantor, though a party, could testify in a suit by a judgment creditor against him and the heirs of his grantee, to prove fraudulent collusion between himself and the deceased grantee, 13 0. S. 263. Under the amendment, 71 v. 68, the words "or defends as heir, grantee," etc., were omitted from the section; and it was held that in a suit for dower, the heir of a deceased husband was a competent witness for the defense where the title of the deceased husband was in issue, 33 O. S. 203. In the amendment, 68 v. 127, the word "assignee" was not included, and the provision of the section was held not to apply to an assignee of a chose in action, 32 O. S. 431. Under the code as originally adopted, the assignor of a chose in action was a competent witness for the assignee in an action by him against an administrator of the debtor to prove any fact in the case, whether occurring before or after the death of the debtor, 9 O. S. 559. The parties intended to be excluded from testifying by this section are the real, and not mere formal, nominal, and wholly unnecessary, parties, 30 O. S. 476. The parties must be adverse in interest, and not merely in their nominal status, 29 O. S. 663, Welch, J. 665. Both the party disqualified and the adverse party referred to, must be parties to the record, adversely interested in the determination of the issues of fact, and they must be so related to the action and the issues at the time of trial, but it matters not whether they stand upon the same side or opposite sides of the record, 22 O. S. 221, Mellvaine, J. Accordingly it has been held that a grantor, not a party to, and having no interest in, the controversy, adverse to defendant, 18 O. S. 73 (see 41 O. S. 368; infra, subdiv. 8), or parties in interest, who have not been made parties to the action, 8 Rec. 360, as heirs and legatees, who will derive the chief benefit from the result of the suit, 3 Bull 590, are not disqualified. So a party to a suit in default for answer is not adverse in interest, but may be called as a witness by his co-defendant who has answered, 29 O. S. 663; 9 Bull 294; 17 O. S. 640; and by analogy a party who sets up, by supplemental answer, his discharge in bankruptcy, which is admitted by the reply, becomes a competent witness for his co-defendant, 9 Bull 295. So where there are two parties, plaintiffs or defendants, claiming several interests under the same title or state of facts, and the adverse party is a competent witness against one, but incompetent under this section against the other, and the case is one in which separate judgments may be rendered, the testimony of such party may be received as against the party as to whom the witness was competent, 22 O. S. 208. And, for the same reason, in an action against a married woman and others, where her husband is incompetent to testify for or against her, he is a competent witness for a co-defendant, if the case be one in which separate judgments may be rendered, 24 O. S. 402. It

would seem that it is the duty of an administrator or executor to object to the testimony of the opposite party prohibited by this section, or even of the court to interfere, 1 H. 13, 14, 18; but where the testimony of a party is heard, subject to general objection to his competency, because the adverse party is the executor of a deceased person, and it does not appear whether the event testified to occurred before or after the death of the testator, and the executor makes no motion to strike out the testimony, but presents counter evidence, without further insisting on his objection, it will be presumed that the party is a competent witness, 8 Bull 29.

2. 2 Bull (sup.) 5. 6.

3. Where an administrator testifies, etc., the adverse party may also to the same facts, 38 O. S. 438; 3 C. C. R. 508.

5. 28 O. S. 84. Unless the same were made in the presence of the survivor, 41 O. S. 334.

6. Book account. But where the testimony failed to show the account book offered in evidence to be a book of original entries, it was held not error to exclude it, 28 O. S. 84.

8. If a party die and his deposition be offered in evidence, etc. See 11 O. S. 624. The provisions of the section shall not apply to proceedings involving the validity of a deed or will, 1 C. C. R. 16, 17. Under the amendments, 68 v. 127 and 72 v. 77, this clause read, "provided that nothing herein contained shall be so construed as to prevent any and all the heirs, grantees, and legatees from testifying in cases to contest the validity of, or to set aside, a will or deed of any ancestor or grantor under whom they may claim title." Under 68 v. 127, it was held that this section did not make the husband of an heir who was joined with her as a plaintiff in an issue of devisavit vel non incompetent as a witness for the contestants, 30 O. S. 472. Under 72 v. 77, it was held, the heirs, legatees, and grantees who are declared competent witnesses by the proviso are such as derive title from the same per sons, and that where a person does not claim under a will or deed he must, to come within the proviso, claim as heir of the testator or grantor whose will or deed is sought to be set aside, 31 O. S. 188.

"And when a case is plainly within the reason and spirit of the last three sections, etc., their principles shall be applied." Under this clause it has been held that a defendant is a competent witness to transactions with a deceased agent of plaintiff, though not occurring in his presence, if within the scope of such agent's authority, 39 O. S. 314; Okey, J., dissenting. The omission of agents, a class whose members equal, if they do not exceed, all the others combined, was evidently intentional. To so construe the last clause of paragraph 8, 8 5242, as to add agents to said enumerated classes would be judicial legislation," 41 O. S. 401, 402. Under this clause it has also been held that parties claiming under a conveyance from a deceased insolvent mortgagor are competent witnesses against each other as to whose lands shall be charged first, 42 O. S. 305; that a widow is a competent witness to prove the execution and delivery by her husband of a deed in an action by the heirs to recover the land, 42 O. S. 211; and where a grantee holds the legal title in trust for the grantor, and without the knowledge of the grantor conveys the land to another upon the same trust, in an action by the grantor against the heirs of the second grantee to enforce the trust,

the first grantee is a competent witness for the first grantor against the heirs of the second grantee to establish the trust, 41 O. S. 368. Party can testify where adverse trustee, etc., 1 C.C.R. 16

25243. Opposite party may be compelled to testify. A party may compel the adverse party to testify orally, or by deposition, as any other witness may be thus compelled. [51 v. 57, ? 312; S. & C. 1037.]

3 W. L. M. 31. In an action by an indorsee of a promissory note against the maker, the executor of the maker may compel the payee and assignor to testify to facts that occurred prior to the death of testator, 44 O. S. 596; 17 Bull 100; reversing 1

C. C. R. 577.

25244. How laws of other states proved. Printed copies of written law enacted by any other state, a territory, or a foreign government, purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law in the courts or tribunals of such state, territory, or government, shall be admitted by the courts and officers of this state, on all occasions, as presumptive evidence of such law (1); the unwritten or common law of any other state, or of a territory, or foreign government, may be proved as facts by parol evidence (2); and the books of reports of cases adjudicated in their courts may also be admitted as presumptive evidence of such law. [51 v. 57, ? 362; S. & C. 1046.]

1. 44 N. Y. 27; 19 Abb. 416; 6 Wend. 475; 5 Wend. 375; 6 Abb. n. s. 215. 2. 5 N. Y. 447; 58 N. Y. 562; 56 N. Y. 182; 1 Johns. 385. According to our decisions, the existence, construction, and legal effect of foreign statutes and laws are matters of fact, 15 O. S. 68; 11 O. S. 690, 691; 11 O. 255, of which judicial notice will not be taken, 32 O. S. 163, and which must be pleaded and proven, 40 O. S. 342, 343; 26 O. S. 131; 2 C. C. R. 387, 400.

25245. How copies of records, etc., made competent evidence. Copies of papers, books, and records on file or deposited, by virtue of any law, in the office of the governor, or secretary of state, and certified by the secretary of state under the great seal, or in the office of the board of public works, certified by the president of the board, or in the office of the auditor of state, certified by him under his seal (1), or in the office of the surveyor of lands lying within the Virginia military district, certified and sworn to by him, and copies of copies of entries, surveys, and plats of lands in the Virginia military district, procured to be made by the commissioners of

any county, and deposited with the recorder of such county, and certified by him, and the copies of such entries, surveys, and plats, now in the office of the auditor of Union county, shall be competent evidence, and have the same force and effect as the originals would if produced. [22 v. 103, 21; 45 v. 54, 21; 48 v. 35, 2 1; 48 v. 69, 26; 74 v. 217, ? 4; S. & C. 555, 556, 557.]

1. The statute making certified copies of the auditor of state evidence, authorizes their admission only where the originals would be competent, 11 O. 261, 262.

SUBDIVISION II.

MEANS OF SECURING ATTENDANCE.

? 5246. How attendance procured. The clerks of the several courts, and judges of the probate courts, shall, on application of a person having a cause or other matter pending in court, issue a subpoena for witnesses, under the seal of the court, inserting all the names required by the applicant in one subpoena, which may be served by the sheriff, coroner, or any constable of the county, or by the party, or any other person; and when a subpoena is not served by the sheriff, coroner, or constable, proof of service shall be shown by affidavit, but costs of such service shall not be taxed. [51 v. 57, ? 316; S. & C. 1038.]

25247. The subpoena. The subpoena shall be directed to a person therein named, requiring him to attend at a particular time and place, to testify as a witness; and it may contain a clause directing the witness to bring with him any book, writing, or other thing under his control, which he may be compelled to produce as evidence. [51 v. 57, § 317; S. & C. 1039.]

25248. Subpoena on taking depositions. When the attendance of a witness before an officer authorized to take depositions is required, the subpoena shall be issued by such officer. [51 v. 57, 318; S. & C. 1039.]

25249. How subpoena served. The subpoena shall be served either by reading, or by copy delivered to the witness, or left at his usual place of residence; but such copy need not contain the name of any other witness. [51 v. 57, 319; S. & C. 1039.]

? 5250. Witness not compelled to attend out of county of residence. Exception. A witness shall not be compelled to go out of the county where he resides, or may be subpoenaed, to testify on the trial of a civil action, or

to give his deposition, except where cases have been removed from the county in which such witness resides, to another county, by change of venue, under provisions of law; nothing herein contained shall be construed to prevent the taking and use of depositions in such lastnamed cases; but no witness shall be compelled to go out of his county to have his deposition taken. [82 v. 221; 51 v. 57, ? 320; S. & C. 1039.]

25251. Right of witness to demand fees in advance. A witness may demand his traveling fees and fee for one day's attendance when the subpoena is served upon him, and if the same be not paid, the witness shall not be obliged to obey the subpoena; and, when a witness has attended upon the court, he may in like manner demand his fees from day to day until discharged by the court. The fact of such demand and payment or non-payment shall be stated in the return by the officer; and if the witness be not discharged on the day he is notified to appear, then the fact of payment or non-payment shall be noted by the clerk in the witness book. [77 v. 216; 51 v. 57, ?? 321, 330; S. & C. 1039-40.]

5252. Contempt of court by witness. Disobedience of a subpoena, a refusal to be sworn, except in case of a refusal to pay fees on demand, a refusal to answer as a witness or to subscribe a deposition, when lawfully ordered, may be punished as a contempt of the court or officer by whom the attendance or testimony of the witness is required. [51 v. 57, ? 322; S. & C. 1039.]

Before the witness can be punished for contempt for refusal to answer a question he must be ordered by the court or officer to answer it, 15 Bull 197. The mere putting a question to the witness by the attorney for the party taking a deposition, and a failure to answer the question at the request of the attorney, the notary making no demand, request, or order to the witness, constitutes no contempt, and a commital therefor is illegal, Id. The witness must be lawfully ordered, 15 Bull 267. He is not bound to answer any question that will directly or indirectly criminate himself, and it would appear he has the right to determine whether the answer will have that effect, 10 O. 336. But a witness is not excused from giving his deposition under ?? 5265, 5266, on the ground that he is not interested in the action; that he is within the county in which the action is pending, and that he does not intend to depart; that he is in good health, and will be able to attend court as a witness when the case is reached for trial. 17 Bull 274; 3 Bull 739 (see 12 Kas. 451; 15 Id. 366); contra, 15 Bull 267; see 3 C. C. R. 263; 4 Bull 457 25253. Attachment against witness. When a witness