The plaintiff was a witness in his own behalf to prove the sale and delivery of the articles for which he claimed to recover. He used what he testified was a copy of his account on his book to refresh his recollection, and, after so doing, testified to the sale and delivery of the articles at the dates contained in the bill annexed to the writ. He afterwards stated that he had his book of original entries, made by himself, in court; and on cross examination was asked to produce it. Under instructions from his *394counsel not to do so, and a ruling of the presiding judge that he was not legally obliged to do so, he refused to produce it. Having testified by refreshing his recollection by referring to what he said was a copy, and having the original in court, the refusal to produce it that it might be seen whether it would support his testimony or not, was an act in court as a witness and party which it was competent for the jury to consider in weighing his evidence. The refusal by the presiding judge, on request, to tell them so was virtually withdrawing it from their consideration. The competency of the fact as evidence was a question of law for the court. The weight to be given to it was for the jury.
The requested instruction on this point should have been given.
Exceptions sustained.
Appleton, C. J., Walton, Dickerson, Barrows and Peters? JJ., concurred.