Wallar v. Stewart's

Decided March 15, 1835

Assumpsit for $> 116.30, for lumber sold and delivered. The defendant had obtained an order of the Court upon the plaintiff, to produce, upon the trial, his original book of entries. After the jury was sworn the defendant called for the book. The plaintiff’s counsel, Mr. Bradley, refused to produce it, although he had it ready; saying that the call was too late after the jury was sworn, and cited Geyger v. Geyger, 2 Dal. 332.

Decided 1835-03-15

The Court

¶1(nem. con.) was of opinion that the motion for non-pros for not producing the book,'was not too late. The book was then produced.

¶2Mr. Bradley then gave notice to the defendant’s counsel, that if they inspected the books he should claim the right to use them as evidence for the plaintiff, and cited Jordan v. Wilkins, 2 Wash. C. C. R. 483.

¶3The Court hesitating, and thinking there were contrary decisions on the point,) decided that if the defendant’s counsel inspected the book he made it evidence for the plaintiff.

(Cranch, C. J., and Morsell, J.,

¶4Mr. Morfit then refused to inspect it.

¶5Mr. Peter Kurtz was then offered as a witness for the plaintiff and was about to testify that he was employed by Stewart, and got the lumber on his credit.

¶6Mr. Brent, for the defendant, objected that the witness was interested ; but it appearing that he was protected by the sta-' tute of limitations, he was permitted to testify without a release from the plaintiff.