The opinion of the court was delivered by
Redfield, J.1. In regard to the right of the plaintiff to recover in this action upon the general counts and the necessity of a demand nothing more need be said, than was said in this case, as reported in 16 Vt. Reports 113.
2. We do not perceive that any improper use was made of the defendants’ books in the course of the trial. They could not be received as evidence in regard to the plaintiff’s claim, if they contained nothing concerning any such account. A party’s books are never evidence of a negative character, to rebut a presumption, — or certainly not ordinarily, — but only in regard to matters which. d!o> positively appear upon them, either of debt, or credit. And certainly, if the books were admitted in support of the defendant’s-counter claim, it was competent for the plaintiff to show, by the-same books, the payment, or settlement, of that claim.
3. In regard to the admissions of the defendants, the judge, wha tried the case, certainly put the matter upon the same ground, on which such admissions have always been received, since I have known any thing of the course of jury trials in this State, and upon *104the sarne"ground that it is put in the English practice, — that is, that the whole declaration of the party, made at one time, as well that in his favor, as that which is against him, must be received and weighed ; but the jury are at liberty to believe one portion and disbelieve the other, as they are all evidence. This undoubtedly puts it in the power of a jury to do great injustice, as it is always in their power to do, — and hence the great responsibility, which rests upon jurors, and upon the judge, often, who presides at such trials, — but such matters cannot be revised in this court.
Judgment affirmed.