Page:Dakota Territory Reports.djvu/30

 if it is a fair book and kept in a manner that shows reliability on its face; but, if not kept in a fair manner, it would not corroborate the testimony of the party introducing it, but might have a tendency to discredit it. The effect of it, as evidence, is strictly a matter with you from its inspection and from the consideration of the evidence in the case in relation to its correctness.

A party is not bound to introduce his book. He may, or may not. If he does not, it is an act of the party which you are at liberty to consider unfavorable to him, if the facts and circumstances connected with the transaction are such as would justify you in so doing. In the present case, the book was offered to the plaintiff by the defendant to be put into the case as evidence by the former, if he desired to employ it for that purpose.

As to the third, the court charged: that an admission of a party is evidence against him, according to its terms. You will consider when and where the admission was made, and the cause of it; and did the witnesses, who have sworn to the admission, state all he said on the occasion? The weight of it is with you to determine its effect in connection with all the circumstances bearing upon it.

The admission of the plaintiff, as a matter of law, is not the best evidence in this case. What the parties actually did, and what occurred between the parties on the settlement, connected with the admissions, is the best evidence as to that point.

To the foregoing charge of the court, on the plaintiff's "requests" and "additional requests," the defendant excepted.

Defendant excepts at the time to the ruling of His Honor Judge Kidder, for allowing plaintiff to introduce testimony tending to impeach, contradict or discredit the book of defendant, which plaintiff introduced under the following circumstances:

Defendant placed said book in the hand of witness G. P. Waldron, by permission of the court, to refresh recollection of witness in relation to the entry of two settlements therein alleged to have taken place between the parties on the 13th