
    Outen vs. Bainbridge.
    
      October 17.
    If a par wants a dife very to be ui in a trial ar I.» he truift eabil his bill ot dj covery in eqi ‘y*
    A court law cannot ri a party It,, a fwer inritrcg tones in t pregrefs ol t; trial.
   OPINION of the Court, by

Judge Ovvseey.

Bain-bridge having obtained a judgment against Outen before a justice of the .peace, Outen by an appeal brought the case to the circuit court; and, upon a trial there, Bain-bridge again recovered a judgment: and to reverse that judgment, Outen lias brought the case before this court by writ of error.

Upon the trial in the circuit court, for the purpose of proving matter in av oidance of Bainbridge’s demand, Outen’s counsel called upon Bainbridge to answer certain interrogatories ; but upon the counsel of Bainbridge objecting^ the court refused to compel him to answer: and whether Bainbridge should have been compelled to answer, is the first question for our determination.

We have no hesitation in deciding this question in the negativ e. If a discovery from Bainbridge was necessary to Outen’s defence, he ought to have exhibited his bill in the ordinary mode for a discovery; but as ha failed to do sd, the court properly refused an examination by interrogatory during the trial. *

* Cambridge having on tlie trial produced an account containing various items against Outen, and having in-’ troüuced witnesses for tlse purpose of establishing it, when the jury was about to withdraw from the bar to consult of their verdict, Outen objected against their taking witii them the account; but his objection was overruled : and the next inquiry is, should the jury have been permitted to take with them the account ?

We are unable to perceive any solid objection against the propriety of permitting the jury to take the account. As evidence perse, the account was clearly inadmissible; and if it had been permitted to be used by the jury for that purpose, we should have no hesitation in sustaining the objection : but as evidence had been introduced for the purpose of establishing the items of the account, to enable the jury to make their estimates, it may have been not only necessary, but was certainly proper, to permit them to use the account. For that purpose, therefore, the court did right in allowing the jury to take with them the account.

The judgment must be affirmed with costs.  