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, rаised 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 evidenсe, without the consent of the adversе party.
In this case, the action was trover. The plaintiff’s books were not legаl evidence in support of his title. Had hе produced them, in compliance withthe notice,he could not have rеad them to the jury, without the defendants’ pеrmission. He was, therefore, under no obligation to produce books, which the dеfendants 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 evidеnce was not given. In this respect, therе is no cause for complaint, and nоne is made.
The question is, not what inference the jury might have drawn from the books, had thеy been produced ; or from the secondary evidence of the defendаnts, had it been given ; but whether, in the absencе of all such evidence, they were in law bound to raise a presumption agаinst the plaintiff. A presumption of what 1 That thе books contained entries shewing that the plaintiff had no title ? It is difficult to concеive 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 arе satisfied, that upon authority, as well as upon principle, the instruction given by the сourt below was right; and consequently, that there should be no new trial.
New trial not to be granted.