15 Conn. 377 | Conn. | 1843
The only question arising upon this motion, which we are now called upon to consider,is,whetherthe judge on the circuit erred in omitting to instruct the jury, that the plaintiff’s neglect to produce his books in evidence, raised a presumption that they contained entries adverse to his claim.
Where a party has in his possession a deed or other instrument, necessary to support his title, and he refuses to produce
But this rule does not apply to such documents as a party has no right to give in evidence, without the consent of the adverse party.
In this case, the action was trover. The plaintiff’s books were not legal evidence in support of his title. Had he produced them, in compliance withthe notice,he could not have read them to the jury, without the defendants’ permission. He was, therefore, under no obligation to produce books, which the defendants might, or might not, give in evidence at their pleasure.
His refusal to produce them, gave the defendants a right to give secondary evidence of their contents, and nothing more. That right was conceded on the trial; — but such secondary evidence was not given. In this respect, there is no cause for complaint, and none is made.
The question is, not what inference the jury might have drawn from the books, had they been produced ; or from the secondary evidence of the defendants, had it been given ; but whether, in the absence of all such evidence, they were in law bound to raise a presumption against the plaintiff. A presumption of what 1 That the books contained entries shewing that the plaintiff had no title ? It is difficult to conceive what else they could presume against him. This surely would be going too far. Cooper & al. v. Gibbons, 3 Campb. 364. Life & Fire Insurance Co. v. Mechanics Fire Insurance Co. 7 Wend. 31.
We are satisfied, that upon authority, as well as upon principle, the instruction given by the court below was right; and consequently, that there should be no new trial.
New trial not to be granted.
