The justice erred in permitting a witness for the defendant to examine a transcript from the defendant’s books, and testify to the amount of sales appearing thereon, without requiring the production of the books, as asked, for by the plaintiff
*132It may well be doubted whether, under the circumstances, the defendant’s boolcs could have been evidence in'kis own behalf, but there can be no doubt that the copy, or supposed transcript, not even proven to be a correct one, was improperly received by the court. ; fe
I think, also, the justice erred in compelling''tie plaintiff to testify on the motion of the justice,, and not at the defendant’s request. The plaintiff objected to the examination..
The law before the Code did not allow of the examination of the party at all. The alteration made by the Code allowed a party to be examined as a witness only at the instance of the adversa party. No authority is given to the court to call upon the parties to testify; and if such a course were allowed, the party so eSknined could not avail himself of the privilege conferred by the 395th section, of being examined on his own behalfj as that only applies to the case of a party examined by his adversary.
In the case of Myers v. McCarthy (2 Sand. S. C. R. 399), the Superior Court held that evidence in answer to a question put to a party by the court, when such party was called by his adversary, was improperly called forth. If this is so when the adversary'puts the party on the stand as a witness, it is certainly much more improper for the court to compel a party to testify when his adversary does not ask for his examination.
Judgment reversed.