
    John Deitz v. Charles N. Regnier.
    1. General Partner — Power to Borrow Money. A general partner of a firm, engaged in manufacturing and selling soap, may borrow money for the benefit of the firm, and pledge its credit therefor, unless restrained by the articles of copartnership, of which the lender has notice.
    2. Partnership — Liability on Promissory Note. A partnership is liable to the holder of a promissory note made by'one member of a trading firm in its name, if the holder has no actual knowledge, suspicion or cause for suspicion, of any fraud upon the partnership in the making of the note.
    3. Partner’s Power to Bind Partnership. It is a general- principle relating to trading partnerships, that each partner is the lawful agent of the partnership in all matters within the apparent scope of the business ; and a firm formed for the purpose of manufacturing and selling soap, is bound by the declarations of a partner during the partnership, whether oral or in writing, made in procuring loans for the carrying on of the business of the firm, and also in respect to transactions within the apparent scope of the partnership business.
    4. Firm, When Liable for Money Borrowed. If money be borrowed by a member of a firm engaged in manufacturing and selling soap, for the use of the firm, without the actual knowledge of the other partner, yet, if the money be necessary for the business of the firm, and the same is actually put with the funds of the firm, and used by the firm in the usual course of business, the partnership is liable therefor.
    5. Firm, When Liable on Promissory Note.' If money be borrowed by one member of such a firm for the use of the firm, and notes executed therefor in the name of the firm without the knowledge of the other partner, but such other partner afterward learns of the transaction and makes no objection thereto, and suffers the money so borrowed to be used in the business of the firm, the partnership is liable to the holder of the promissory note so executed in the firm-name.
    C. Note, When Prima Faeie Obligation of Firm; Burden of Proof. Where money is borrowed by the partner of such a firm in the name of the firm, and a note executed therefor, such note is prima facie the obligation of the partnership; and if the other partner seeks to avoid its payment, the burden of proof lies upon him to show that the note was given in a matter not relating to the partnership business, and that also with the knowledge of the holder of the note.
    7. Surety on Firm Note; Presumption; Burden of Proof. Where a third person becomes surety upon the notes of such a firm,-at the instance of one of the copartners, he has a right to presume that the money obtained upon the notes is for the use of the firm, unless there is something to create a suspicion in his mind that the money is not borrowed for the firm, and that the borrower is committing a fraud upon his co-partner; and where the surety, after default by the firm, pays the money thus borrowed upon the notes of the firm, if the other partner seeks to avoid the payment, the burden of proof lies upon him to show, not only that the money was not applied to the use of the firm, but also that the surety on the notes had reason to believe it was not intended to be so applied at the time the money was so borrowed and his signature obtained upon the notes.
    8. Practice; Evidence; No Error. On the trial of an action brought by the holder of a promissory note made by one member of the firm, in the name of the firm, against the partnership, for the purpose of showing that the money obtained upon the note went into the business of the firm, a copy of the account of the firm with a banking house situated in another state was attached to the deposition of the book-keeper of the banking firm, and received by the court in evidence. This was objected to, on the ground that the copy of the account was not the best evidence. Held, Not error. As the books of -the banking house were out of the jurisdiction of the court, their production could not be compelled in this state; and as such books were not in the custody or under the control of the party offering a copy thereof, such copy was under the circumstances admissible, as this was the best evidence it was in the power of the party to produce.
    9. Deposition ; Witness May Testify, etc. Where a witness was present at the taking of a deposition of a party to the record, such witness may be permitted to testify to the admissions and declarations made by such party, notwithstanding the declarations and admissions were reduced to writing, and embodied in a deposition.
    10. Instruction, Refusal of, Not Error. Where an affidavit is presented by a party to the record for a continuance on account of absent testimony, and the adverse party consents that the facts alleged shall be read and treated as the deposition of the absent witness, and thereafter the facts alleged in the affidavit are read to the court and jury and treated as a deposition, the refusal of the court to specially charge the jury that the affidavit must be received and considered by the jury as the deposition of the absent witness and entitled to the same weight as the deposition of such witness, is not necessarily error on the part of the trial court.
    11. Special Instructions, Refusal to Give, When not Error. Where the , parties to an action ask a large number of special instructions to be given to the jury, all of which are refused by the court, and the court takes the several instructions and thereupon gives a general charge to the jury, embracing all the point's of law arising upon the pleadings and evidence, and embodying therein all the matters of law contained in the special instructions asked for, so far as they are applicable to the case, no error is thereby committed, as the court is not bound to repeat its general charge in the form of special instructions, or to give the special instructions in the exact language asked for. The duty of the court is fully discharged in this respect, if the instructions given embrace all the points of law arising in the case.
    
      Error from Atohison District Court.
    
    Action brought August 13, 1880, in the district court of Atchison county, by Charles N. Regnier against John Deitz and F. W. Regnier, late partners under the firm-name of Deitz & Regnier, to recover $1,731.55. The petition (omitting court and title) is as follows:
    “1. At Atchison, Kansas, on April 5th, 1879, the said defendants, as partners then in business, desiring to procure the loan of six hundred dollars from the partnership firm of Brown & Bier, applied to the plaintiff to become their security therefor; and thereto the plaintiff consenting, the said defendants and the plaintiff did then and there execute and deliver to Brown & Bier their certain promissory .note, in words and figures, to wit:
    $600. Atchison, Kansas, April 5, 1879.
    Three days after date, we promise to pay to Brown & Bier or order, six hundred dollars, for value received, payable at their office in Atchison, with interest at the rate of 10 per cent, per annum from date.
    Deitz & Regnier.
    Charles N. Regnier.
    “And thereon the defendants did procure, to and for their said use, the said sum of $600, and for the payment of which they then and there became bound, and this plaintiff in fact, as security therefor, also became bound. And plaintiff avers that thereafter the said defendants dissolved as such partners, and have ever since refused to pay said note; and upon the demand of said Brown & Bier, being thereto bound, the plaintiff did, on August 12th, 1880, pay to said Brown & Bier the amount due by reason of said note, and being then the said sum of $683.22, and said Brown & Bier thereon delivered said note to plaintiff, who has since been the owner and holder thereof, by virtue of the premises as aforesaid stated.
    “2. Plaintiff further says, that at Atchison, Kansas, on August 18, 1879, the said defendants, as partners then in business, desiring to procure the further loan of one thousand dollars from the present partnership firm of Brown & Bier, applied to the plaintiff to become their security therefor; and thereto the plaintiff consenting, the said defendants and the plaintiff did then and there execute and deliver to said Brown & Bier their certain promissory note, which is copied in words and figures, viz.:
    SI,000. Atchison, Kansas, August 18,1879.
    Thirty days after date, we promise to pay Brown & Bier, or order, one thousand dollars, for value received, payable at their office in Atchison, with interest at the rate of 10 per cent, per annum from date.
    Deitz & Begnier.
    Charles N. Begnier.
    “And thereon the defendants did procure, to and for their said use, the said sum of $1,000, and for the payment of which they then and there became bound, and this plaintiff in fact, as security therefor, also became bound. And plaintiff avers that thereafter the said defendants dissolved as such partners, and have ever since refused to pay said note; and upon the demand of said Brown & Bier, and being thereto bound, the plaintiff did, on August 12, 1880, pay to said Brown & Bier the amount then due by reason of said note, and being then the sum of $1,098.33, and said Brown & Bier thereon delivered said note to plaintiff, who has since been the owner and holder thereof, by virtue of the premises as aforesaid stated.
    
      “ 3. Plaintiff further avers, that the defendants have never paid said sums of $683.22 and $1,098.33, on said August 12, 1880, amounting to the sum of $1,781.55, and although thereto requested and demanded, they ever refused to pay the same; and said amount, with interest thereon from that date at the rate of ten per cent, per annum, being the amount of interest expressed in said notes, now remains due and unpaid, and for which plaintiff demands judgment against the said defendants, together with proper costs of action.”
    John Deitz filed the following answer:
    
      “First: That he denies each and every allegation, statement and averment therein contained, not hereinafter expressly admitted.
    
      “Second: For further answer, this defendant says: Thathe admits that he was a partner of said F. W. Regnier, and as such partner was engaged in the manufacture of soap, in the city of St. Joseph, state of Missouri; but expressly denies that on April 5, 1879, the said defendants, as partners then in business, desiring to procure a loan of six hundred dollars from Brown & Bier applied to said plaintiff to become their security; and denies that on August 18, 1879, the said defendants, as partners then in business, desiring to procure the further loan of one thousand dollars from said Brown & Bier, applied to said plaintiff to become their security; and denies that said plaintiff did become security on said notes with the knowledge and consent of this defendant. But this defendant alleges and charges the fact to be, that F. W. Begnier is a brother of said plaintiff, Charles N. Begnier; that said plaintiff well knew that said F. W. Begnier had no right or authority to borrow any money as a partner of this defendant; and well knew that said money was not borrowed for the purpose of being used in the business of Deitz & Begnier; and said plaintiff had full notice that said F. W. Begnier borrowed said money for his own private purpose, and that the use of the name of Deitz & Begnier by said F. W. Begnier was for the purpose and with the intent on the part of said F. W. Begnier to defraud this defendant, of all which said plaintiff had due notice. And this defendant further says, that said defendant F. W. Begnier, was, on April 5th, 1879, and subsequently to that time, wholly insolvent, of all which said plaintiff had due notice. And this defendant is informed, and so charges the fact to be, that said money so-received from Brown & Bier, or a large part thereof, was paid by said F. W. Begnier to the plaintiff herein for the purpose of liquidating the private indebtedness of said F. W. Begnier to his brother, the plaintiff herein; and that said plaintiff well knew that said money was being borrowed for that purpose, and not for the purpose of being used in the business of the copartnership firm of Deitz & Begnier. •
    “And said defendant says, that for the purpose of injuring and wronging this defendant, the said plaintiff concealed from this defendant the fact that said notes had been executed by his brother, F. W. Begnier, in the firm-name of Deitz & Begnier, until his sáid brother F. W. Begnier had left the state of Kansas; and this defendant further says, that said money was not obtained from said Brown & Bier by said F. W. Begnier in the usual and due course of business; that said Brown & Bier had full notice that said F. W. Begnier had no right or authority to execute said notes in the name of Deitz & Begnier for the purpose of obtaining money thereon, and well knew that said money was not to be' used in the business in which said Deitz & Begnier had been engaged, and, but for the representations and promises . of s.aid plaintiff, would not have advanced any money on said notes to said F. W. Regnier; and this defendant says that said notes, or either of them, created no liability as against •this defendant, and of which said Brown & Bier had full notice.
    “ Third: This defendant denies that he executed said notes, or either of them, and denies that any person had any right, power or authority to execute the same in the name of this defendant, or in the names of Deitz & Regnier, and denies that the money F. W. Regnier received on said notes was used in the business of Deitz & Regnier, or any part thereof ever received by this defendant.
    “Wherefore, this defendant prays judgment for costs of suit.”
    “State op Kansas, County op Atchison, ss.: John Deitz, being duly sworn, deposes and says, that he is one of the defendants herein; that he knows the contents of the within and foregoing answer, and affiant verily believes the matters and things therein set forth, are true.
    John Deitz. .
    “Subscribed and sworn to before me, this 28th .day of September, 1880. George H. Roberts,
    [seal.] Notary Public, Buchanan County, Missouri.”
    Charles N. Regnier filed the following reply:
    “1. That he denies each and every allegation and statement therein contained, other than the admission therein of such partnership, and the business in which said partners were engaged and the location thereof, and the charge that said F. W. Regnier is the brother of the plaintiff, which is admitted.
    “ 2. Further replying, plaintiff says, that he specially denies that either of said loans was made for the purpose of the private use or benefit of said F. W. Regnier, but on the contrary, avers that the proceeds thereof were applied to the benefit of the said partnership in its said, business; and avers further, that said F. W. Regnier was the book-keeper and financial manager of such'partnership during its said business, and as such had full authority to, and did in fact obtain, the said money for the business of the said partnership firm, and applied and used the same in the usual and ordinary course of business tberefor.
    “Plaintiff further avers, that during their said business the said partnership obtained frequent accommodations prior to and after the said loans described, and that each and all thereof were done in the usual and ordinary course of business of said partnership firm, and known and recognized by each and both of said partners as such partnership business.
    “Plaintiff further specially denies that said F. W. Regnier was, during any of said time, indebted to the plaintiff on his private account, or that he borrowed or procured any money by or with the knowledge of the plaintiff for or on his own private account.
    “Plaintiff further specially denies that he ever had any knowledge or reason to believe that said F. W. Regnier, during any of said time, was in any manner conducting himself or said business in fraud of the rights of his said partner, or that in any manner he used the funds or means of said partnership for his private account.
    “ Wherefore, plaintiff prays that defendant take nothing by his said answer.”
    The defendant F. W. Regnier made default. The case was tried at the May Term, 1881. The court (Martin, J.) charged the jury as follows:
    “I. In this case the following facts may be taken as admitted in the pleadings, or not disputed in the testimony, namely:
    “1. During all of the year 1879, until about November 1, the defendants were, partners in the business of manufacturing soap, at St. Joseph, Mo.; that prior to the formation of said partnership, defendants resided at Atchison, Kansas, where the plaintiff and the firm of Brown & Bier reside; and that the defendant F. W. Regnier is the plaintiff’s brother;
    ■ “ 2. On or about April 5, 1879, said firm of Brown & Bier parted with the sum of $600, and received therefor the promissory note, a copy off which is set forth in plaintiff’s petition, which promissory note was signed by the said F. W. Regnier in said firm-name of Deitz & Regnier, and also by the plaintiff.
    “3. On or about August 18, 1879, said firm of Brown & Bier parted with the sum of $1,000, and received therefor the promissory note, a copy of which is also set forth in plaintiff’s petition, which promissory note was signed by the said F. W. Regnier in said firm-name of Deitz & Regnier, and also by the plaintiff.
    “4. Said promissory notes were not paid, nor either of them, either wholly or in part, by the defendants, or either of them; and on or about August 12,1880, the plaintiff paid both of said promissory notes, together with the interest thereon, the former amounting in principal and interest to $683.22, and the latter amounting in principal and interest to $1,098.33 — making a grand total of $1,781.55.
    “II. Beyond this, the pleadings and the evidence conflict. The plaintiff claims- that he signed said promissory notes only as surety for the defendants and for their accommodation, in order to assist them in their said business, and that he is now entitled to recover of them the amount so paid by him in taking up said promissory notes, together with interest thereon at the rate of ten per cent, per annum from and after August 12th, 1880.
    “ III. The defendant E. W. Regnier makes no defense to the action, but the defendant John Deitz defends the action as against himself and said firm of Deitz & Regnier. He claims that said promissory notes are not in truth and in fact the obligations of said firm of Deitz & Regnier, but only the obligations of said F. W. Regnier; that the said F. W. Regnier was not authorized to sign said firm-name to said promissory notes; that the borrowing of said money from Brown & Bier was not authorized by said .firm of Deitz & Regnier, but on the contrary, that said money was borrowed by the said F. W. Regnier for his own purposes, as the said plaintiff well knew, and not for said firm of Deitz & Regnier, and that said money was not in fact used by or applied to the benefit of said firm of Deitz & Regnier, but was used by the said F. W. Regnier for his own purposes, and in part for the payment of certain indebtedness of the said F. W. Regnier to the plaintiff. This is the substance of the defense only.
    “ IV. The main question in the case is, therefore, whether said notes (or either of them) were t,he obligations of said firm of Deitz & Regnier, or only the obligations of said F. W. Regnier although signed by him in the firm-name.
    “V. It is a general rule of law, that the whole firm and all the members of a copartnership are bound by the acts and contracts of one partner with reference to the partnership business and affairs; such act or contract being in law the act or contract of all, provided such act or contract be • within the scope of the business of the firm or arising out of and connected with the usual business of the firm. And the declarations of one partner in relation to the partnership business, and made in the usual course of such business, may be used in evidence against the firm. But such declarations cannot be used in evidence against the firm, or against the absent partner, unless made in relation to the partnership business and in the usual course thereof.
    “And in this case it is your duty to carefully exclude from your consideration any declarations of the said F. W. Regnier, whether made orally or in writing, without the knowledge of the said John Deitz or by his assent, unless such declarations were made in relation to the partnership business and in the usual course thereof.
    “VI. Said notes (or either of them) may be considered the obligations of the firm of Deitz & Regnier in any one of the following cases, namely:
    “1. If the said John Deitz authorized the said F. "W. Regnier to execute said promissory notes for'the firm.
    “2. If the said John Deitz authorized the said F. W. Regnier to borrow said sums of money, or authorized him to borrow money generally for the firm, and said money was borrowed' on his statement that it was for the firm, and, the said plaintiff believed said statement.
    “3. If the said F. W. Regnier was by the consent of the said John Deitz the manager of the financial affairs of the firm, and. authorized to do whatever he thought necessary for its financial interests, and said money was borrowed on his statement that it was for the firm, and the said plaintiff believed said statement.
    “4. If said money was borrowed by the said F..W. Regnier for the firm without the actual knowledge of the said i John Deitz, but said money was necessary in the business, and the same was actually put into the funds of the firm and was used by said-firm in the usual course of business.
    “5. If the said John Deitz did not at the time know of the borrowing of said money for the firm, or the giving of said promissory notes therefor, but he afterward learned of the same and made no objection thereto, but suffered said money to be used and appropriated in the business.
    “VII. But said notes (or either of them) are not to be considered the obligations of the firm in any of the following cases, namely:
    “1. If said money was borrowed by the said F. W. Regnier for his own purposes, with the knowledge of the plaintiff, unless the said John Deitz authorized the said F. W. Regnier to do so and to sign the firm-name.
    
      
      “2. If said John Deitz did not authorize the said E. W. Regnier to borrow said money, or to execute said promissory notes, nor to borrow money generally for said firm^nor to conduct and manage the financial affairs of the firm, and said money was not necessary for the use of the firm, and was not in fact applied to the use and benefit of the firm with the knowledge of the said John Deitz, unless said money was borrowed in the usual course of business of the firm.
    “3. If said plaintiff did not in good faith become the surety of said firm of Deitz & Regnier, but on the contrary, signed said notes to enable the said E. W. Regnier to obtain said money for his own purposes, and not for the use and benefit of the firm.
    “4. If from the facts and circumstances the plaintiff had reason to believe that said F. W. Regnier was obtaining said money for his own use, and not for the use and benefit of said firm, and said money was not in fact used for the benefit of the firm.
    “ VIII. The burden of proof rests upon the plaintiff, and it devolves upon him to prove all material facts in his case by a preponderance of the evidence; and if he has failed to to do so, then it is your duty to find in favor of the defendant John Deitz.
    “IX. You are the exclusive judges of all questions of fact, and of the weight of the testimony and the credibility of the witnesses; and if you believe from the evidence that any witness has testified willfully, corruptly and falsely to any material fact upon this trial, then it is your province to' determine how much weight shall be given to his testimony, if any, and in such case you are at liberty to disregard all of his testimony if you think proper.
    “X. If you find in favor of the plaintiff, you will assess the amount of his recovery at the full value of the notes (or either of them) for which you find the defendant liable, together with interest thereon at the rate of ten (10) per cent, per annum up to the present time.
    “If you find that the plaintiff is not entitled to recover of said firm of Deitz & Regnier, then you will find a verdict in favor of said John Deitz.”
    The jury returned a general verdict against John Deitz and F. W. Regnier in favor of Charles N. Regnier for $1,915.16. A motion for a new trial was filed by John Deitz, which on consideration of the court was overruled, and thereon judgment was rendered in favor of Charles N. Regnier for said sum of $1,915.16 and costs. Deitz brings the case here.
    
      Everest & Waggener, for plaintiff in error.
    
      W. W. Guthrie, for defendant in error.
   The opinion of the court was delivered by

Horton, C. J.:

I. The first error complained of is, the action of the court in permitting defendant in error (plaintiff below) to read in evidence the notes set forth in the petition. It is urged that as the execution of the notes was denied under oath, no proper foundation was laid for their introduction in evidence. This complaint is not good, because, prior to the offer of the notes to the jury, evidence had been introduced to the effect that John Deitz and F. W. Regnier formed a partnership about December, 1878, for the purpose of carrying on the business of manufacturing and selling soap, at St. Joseph, Missouri, which continued until the 3d of November, 1879; that the note of April 5th, 1879, for $600, was given to raise money to repay Charles N. Regnier the like amount handed to John Deitz on the 31st of January, 1879, for the firm of Deitz & Regnier, to be used in their.partnership business; that the note of August 18,1879, for $1,000, was given to Brown & Bier for their check of $1,000, payable to the order of Deitz & Regnier; that F. W. Regnier, of the firm of Deitz & Regnier, signed the firm-name of Deitz & Regnier to each note at its respective date; and that Charles N. Regnier signed his name to each note as surety for the firm. Thus the actual execution of the notes by a member of the firm of Deitz & Regnier, and by Charles N. Regnier as surety, was proved before they went to the jury. In addition to this, it was shown that Deitz attended to the matters in the soap factory, occasionally taking a trip away from St. Joseph to sell the manufactured goods of the firm, but that the business of the partnership about the office and pertaining to the books and accounts of the firm was left by Deitz to his partner, E. W. Regnier. Under this evidence the money was borrowed within the apparent scope of the partnership business, a general partner thereof executing the notes of ^the firm, and Charles N. Regnier signing as surety for the firm. It is well settled, that a general partner in a trading business may borrow money for the benefit of the firm and execute notes or drafts therefor, unless restrained by the articles of copartnership, of which the lender has notice. (Hedley v. Brainsbridge, 3 Q. B. [Ad. & E., N. S.] 316; Kirk v. Blurton, 9 M. & W. 284; 1 Chitty on Contracts, 11th ed., p. 345; Faler v. Jordan, 44 Miss. 283; Hickman v. Kunkle, 27 Mo. 401; Zuel v. Bowen, 78 Ill. 234.) So where money is borrowed by the partner of a trading firm in the name of the firm, and a note is executed therefor, such note is prima faeie the obligation of the partnership; and if the other partner seeks to avoid its payment, the burden of proof lies upon him to show that the note was given in a matter not relating to the partnership business, and that also with the knowledge of the holder of the note. (Whitaker v. Brown, 16 Wend. 505.) It is also the law that where a third person becomes surety upon the notes of a trading firm at the instance of one of the copartners, he has a right to presume that the money obtained upon, the notes is for the benefit o'f the firm, unless there is something to create a suspicion in his mind that the money is not borrowed for the firm, and that the borrower is committing a fraud upon his copartner. And where such surety upon default by the firm pays the money thus borrowed upon the notes of the firm, if the other partner seeks to avoid the payment thereof the burden of proof lies upon him to show, not only that the money was not applied to the use of the firm, but also that the surety on the notes had reason to believe it was not intended to be so applied at the time the money was so borrowed and his signature obtained upon the notes. (Bond v. Gibson, 1 Camp. 185; Jaques v. Marquand, 6 Cow. 497; Blodgett v. Weed, 119 Mass. 215.) The partnership of Deitz & Regnier was formed for the purpose of manufacturing and selling soap, and within the authorities such a partnership is a trading partnership, one of the incidents of which is the right to borrow money for the purposes of the business; and any member of it may bind his copartner by making or indorsing a promissory note in the name and on behalf of the firm. (Winship v. Bank, 5 Pet. 529; Smith v. Collins, 115 Mass. 388; Tappin v. Bailey, 4 Metc. 529; Etheridge v. Binney, 9 Pick. 272; Blodgett v. Weed, supra.) If the firm of Deitz & Regnier had been merely a .partnership in occupation or employment, like partners in the practice of law or medicine, some of the propositions submitted by counsel for plaintiff in error upon the point here commented upon would have force, because a non-trading partnership is controlled by rules different from those which control a commercial or trading one. Considering the character of the partnership in question, the notes were properly received and read to the jury.

II. Objection is also taken to the introduction in evidence of a letter of January 31,1879, written by F. W. Regnier to Charles N. Regnier, and handed to the latter by John Deitz. It is urged that Deitz was not bound by the contents of the letter, as he neither read it nor was apprised by any one of what it contained. The purport of the letter was, that the firm was in a terrible pinch, and needed at once f600 to pay current accounts past due. The money therein applied for was handed to Deitz at the time he presented the letter. Waiving all question of Deitz’s connection with this letter, and the receipt of the money by him on its presentation, the letter was competent, because it is a general principle relating to partnerships, that each partner is the lawful agent of the partnership in all matters within the scope of the business; and the declarations, of F. W. Regnier during the partnership, whether oral or in writing, made in procuring loans for the firm, were clearly admissible.. (Kaskaskia Bridge Co. v. Shannon, 1 Gilm. [Ill.] 15, 25; Kady v. Kyle, 47 Mo. 346; Iron Mountain Co. v. Evans, 27 Mo. 552; 1 Gr. Ev., 13th ed., 217, 218; Fales v. Jordan, 44 Miss. 283; Irby v. Brig ham, 9 Humph. 750; Wilkins v. Pearce, 5 Denio, 541; Beck v. Martin, 2 McMullan, 260; Edwards v. Tracy, 62 Pa. St. 374; Smith v. Collins, supra.)

III. Upon the trial, Charles N. Regnier offered the evidence of John Calhoun and W. S. Johnson by’ depositions. The former is a member of the banking firm of Schuster, Hax & Co., and the latter is the book-keeper of the banking firm. For the purpose of showing that the money borrowed from Brown & Bier went into the business of Deitz & Regnier, a copy of the account of Deitz & Regnier with the banking house of Schuster, Hax & Co. was referred to and attached to the depositions, and received by the court in evidence. This was objected to, on the ground that the copy was not the best evidence. Was this error? We think not. The books of the banking house of Schuster, Hax & Co. were in the state of Missouri, out of the jurisdiction of the court. Their production could not be compelled in the courts of this state; and as the books were not in ‘the custody of the party offering the account in evidence, but in the hands of a firm in another state, not subject to the call or control of the party needing them here, a copy thereof was admissible. In Shepard v. Giddings, 22 Conn. 282, the custodian resided in a foreign state, and refused to deliver the written instrument sought to be proved, but attached a copy to his deposition. The copy was held to be admissible, as this was the best evidence it was in the power of the party to produce. Under the circumstances of this case, the account read in evidence was the best evidence in the power of the defendant in error (plaintiff below) to produce to establish the fact sought to be proved. (Shaw v. Mason, 10 Kas. 184, and cases cited.)

IV. .One Seneca Heath was permitted to testify to the statements made by Deitz in his presence. This was objected to, as the statements were made while his deposition was being taken, and reduced to writing in the form of a deposition. The declarations of a party to the record are, as against such party, admissible in evidence; and the fact that in this case they were embodied in a deposition would not prevent the statements being testified to before the jury. Of course if the statements had not been made in the presence of Heath, he would not have been a competent witness. The evidence therefore was receivable, on the ground that the statements were admissions or declarations of Deitz.

V. When the case was called for trial, Deitz presented his affidavit for a continuance on account of the absence of F. W. Regnier. Thereupon, the adverse party consented that the facts alleged in the affidavit should be read and treated as the deposition of the absent witness. Defendant Deitz, among other instructions, asked the court to give the following one:

“The jury are instructed that the affidavit for a continuance on account of the absence of F. W. Regnier must be.received and considered by the jury as the deposition of F. W. Regnier, and the same is entitled to the same weight as the deposition of the said F. W. Regnier, containing the same statements.”

This instruction was refused, and exception noted thereto. While it is true that the affidavit presented was entitled to be treated as the deposition of the absent witness, we do not perceive any particular reason in this case for the instruction prayed for. The affidavit was admitted by the plaintiff to be read as a deposition of F. W. Regnier, and the record shows that the defendant offered the evidence of F. W. Regnier by deposition, and for all purposes it was before the jury with the same force as the depositions'of John Calhoun and W. S. Johnson. It was not read to the jury as an affidavit, but was read and treated as a deposition of F. W. Regnier; therefore there was no more reason for calling special attention by the court to the evidence of F. W. Regnier submitted to the jury by the way of deposition, than there was to call special attention to the evidence of Calhoun and Johnson. If counsel of Charles N. Regnier had made any improper or unfair reference to the evidence of F. W. Regnier, on the ground that it was presented by affidavit, then it would have been prudent for the trial court to have corrected counsel, and to have given some direction to the jury like that prayed for. The necessity for such action, however, is not apparent from the record before us. ' There was no error in the refusal to give the instruction.

VI. Several exceptions were taken to the refusal of the court to give instructions asked for by plaintiff in error. After an examination of the instructions refused, together with the charge of the court, we think these exceptions and the objections to the charge not tenable, as the direction of the judge to the jury embraced all the points of law arising upon the evidence, and were sufficiently favorable to the plaintiff in error. The court fully and clearly declared the well-settled principles of law as to the liability of copartners. We need not repeat these instructions, as they are set out at length in the statement of the case, and it is sufficient to say that so far as this case is concerned they meet our approval.

VII. Various other matters are submitted for our consideration, but the points decided fully cover all the material questions, and it is useless to refer in detail to the minor alleged errors.

VIII. We take occasion, however, in this opinion to commend the action of the district judge in the course he adopted in giving the instructions to the jury. The plaintiff asked three instructions, the defendant asked twenty-two. The court took all these instructions and prepared a general charge to the jury, embracing all the matters of law arising upon the pleadings and the evidence, and embodying in such charge the matters of law contained in the special instructions so far as they were applicable to the case. In this way, the law was sufficiently declared and clearly presented to the jury without the unnecessary repetition and verbose language which so often mar special instructions, whereby jurors are confused and confounded, rather than instructed and directed. ■ Of course such action requires great labor, thought and prudence on the part of the trial judge, in order that the substance of all special instructions shall be given to the jury when the questions therein presented are pertinent to the case, and that no omission shall occur by which either of the parties shall be prejudiced. But if the law is fully declared to the jury by the court in a general charge, and such charge embraces all the points of law arising in the case, the court is not bound to repeat its charge in the form of special instructions, or to give the special instructions in the exact language asked for.

Perhaps it is not often that the judge has the time during the progress of a trial to prepare a charge embracing in his own language all the special instructions asked for and applicable to a case, but we are very sure where this can be done, if the trial judge is willing to undertake the additional labor, that the jury, as a rule, will be better informed of their duty than by hearing read the special instructions asked for on the part of the plaintiff and of the defendant, which instructions are frequently so disconnected, and sometimes so conflicting, as to render it extremely difficult for the jury to harmonize them, or to understand their purport.

The judgment of the district court'will be affirmed.

All the Justices concurring.  