(after stating the facts). All of the exceptions taken by the defendant on trial, were abandoned in this Court, except those taken to the ruling of the Court in consolidating the two actions; and refusing to allow the witness Pipkin to refresh his recollection as to the number of times he sold the land, by reference to the register’s book in which his deeds were recorded.
We think the exception to the ruling of consolidation came too late. It was at Fall Term, 1883, that the order was made by the Court to consolidate the two cases. No exception was then taken to the ruling, but the defendant, by his silence, is presumed to have acquiesced in the order.
At the Special Term, 1884, the defendant William Jones, asked that No. 2 — his action against the plaintiff Ellen P. Jones and others — should be first tried. The Court refused the motion, and ordered the trial to proceed under the order of consolidation, made at Fall Term, 1883, to which the defendant William Jones excepted.
It will be noticed that there was no exception to the order of consolidation, but only to the order in which the two consolidated cases should be tried. But this exception was abandoned-in this Court, for the defendant abandoned all exceptions except that to the order of consolidation, and the ruling in the matter of refreshing the memory of the witness. After the actions were consolidated, it was a matter entirely in the discretion of *114the Judge, what, order should be observed on the trial, and his ruling in that respect is not reviewable.
We thinlcas the defendant W. H. dones acquiesced in the order of consolidation at the time it was made, and when even at the time, he made no objection to the order, but only to the manner in which the two should be consolidated, he waived his objection to the order, and cannot be allowed to take it for the first time in this Court. In the ruling of the Court upon this point there was no error.
Nor do we think there was any error upon the other point. It is well settled that the best evidence the case admits of shall be offered. In this case, the two deeds executed by the witness Pipkin, as sheriff the one to J. E. Jones and W. H. Jones, and the other to James L. Anderson, bearing his signature, were in evidence and before the Court. A reference to these deeds was certainly the best means of refreshing his memory. Why, then, resort to the register’s book, which was only a copy of the deeds? Was it admissible? In Starkie on Evidence, 181, it is held, “ whether the writing be used merely as an instrument for restoring the recollection of a fact, or be offered to be read as containing a true account of particulars entirely forgotten, it must, in conformity with the general principles of evidence, be the best for the purpose the case admits ofand in the case of Burton v. Plummer, 2 A. & E., 348, (29 E. C. L. Rep.), it was held, that “the copy of an entry, not made by the witness contemporaneously, does not seem admissible for the purpose of refreshing a witness’s memory. The rule is, that the best evidence must be produced, and the rule appears to be applicable, whether the paper be produced as evidence in itself, or to be used merely to refresh the memory.” This decision, which was made by Justice PatteesoN, is referred to with approval by Taylor in his work on Evidence, §1265. •
The register’s book was no doubt admissible as evidence in the cause, upon the question of title, but it was not the best evidence for the purpose for which it was offered, i. e. to refresh the re*115collection of the witness. The original deed having the signature of the witness, for that purpose was certainly the best evidence. We are, therefore, of the opinion there was no error in the ruling of the Court upon that point.
The judgment of the Superior Court is therefore affirmed.
No error. Affirmed.