Williams, a witness who was called to prove the usury, on his cross-examination by the counsel for the plaintiff, was asked if he, as clerk of the defendant, did not keep a book in which these negotiations were entered debtor and creditor between Pintard and Duer; and whether the money received on this note was not entered in it. The witness replied there was such a book, which he had with him, but that he spoke from memory altogether in giving his testimony. The counsel for the plaintiff called for the book, which they insisted would prove a sale of the note, and not a loan, but the court would not compel the production of the book because no notice had been given to produce it.

The counsel for the plaintiff argued to the jury that from the defendant’s not producing this book they were entitled to infer that it would, if laid before them, have proved a loan; but the court said no such inference could legally be drawn without notice to produce it.