New Haven & Northampton Co. v. Goodwin

Park, C. J. We think the court below erred in rejecting the books of the defendants as evidence in the case upon the question whether the claims of the plaintiffs had been paid. It was in evidence before the court, that the books had been kept by Buck, one of the defendants, and that all the entries in them regarding the transactions between the parties were proper charges to be entered upon the account books of the partnership, and that they were all made by Buck in the regular and usual course Of the business of the partnership. It was also in evidence that a long time before the trial Buck had absconded to parts unknown out of the state, and that he was still absent and could not be procured as a witness. Under these circumstances we think it is clear that, by the law of this state, the books should have been received in evidence without the testimony of Buck in regard to them. He had gone to parts unknown, and could not be produced as. a witness. The same necessity therefore existed for receiving the books in evidence that would have existed if Buck had been dead at the time of trial. If such had been the case they would undoubtedly have been evidence. 1 Smith’s Lead. Cases, 225, 231; Livingston v. Tyler, 14 Conn., 493 ; Stiles v. Homer, 21 Conn., 507 ; Butler v. The Cornwall Iron Co., 22 Conn., 335; Ashmead v. Colby, 26 Conn., 287; Bartholomew v. Farwell, 41 Conn., 107. We advise a new trial. In this opinion the other judges concurred.