
    Brewster vs. Doane and another.
    Entries and memoranda made by third persons in the usual course of business, as notaries, clerks, &c., cannot be given in evidence on the ground merely that they are absent beyond the jurisdiction of the court; though otherwise, where they are dead.
    Motion to set aside report of a referee. The action was for goods sold and delivered. The goods were delivered to one D. Y. Doane, and, as the plaintiff alleged, on the credit of the defendants; but the defendants denied that they had any thing to do with the purchase of the goods. After other evidence had been given, the plaintiff, for the purpose of showing to whom he gave credit for the goods, proposed to give in evidence one of his books of account, called a blotter, having first proved that the entry to which he wished to refer was in the hand-writing of one Christie, who at the date of the entry was a clerk of the plaintiff. The defendants objected, but the referee admitted the book, which showed that the goods were, on the 17th October, 1838—the time of delivery—charged to the defendants.
    After the defendants had given in evidence a receipt of the plaintiff subsequent to the delivery of the goods, the plaintiff produced his ledger, for the purpose of explaining the receipt. The defendants objected to receiving the book, but the referee admitted it, on the ground, as he said, that Christie, the clerk who made the entry sought to be proved, was beyond the jurisdiction of the court. The referee reported that $>483,83 was due the plaintiff, and the defendants now moved to set aside the report.
    
      A. Gardiner, for the defendants.
    
      W. S. Bishop Sp O. Hastings, for the plaintiff.
   By the Court,

Bronson, J.

The rule is, that entries and memoranda made in the usual course of business, by notaries, clerks and other persons, may be received in • evidence after the death of the person who made them. (Halliday v. Martinet, 20 John. 168; Butler v. Wright, 2 Wend. 369; Hart v. Wilson, id. 513; Nichols v. Goldsmith, 7 id. 160; Cowen & Hill’s Notes to Phil. Ev. 674—676.) But if the person who made the enti-y be still living, though out of the state, he must be called, or examined on commission—otherwise his entry or memorandum cannot be received. (Wilbur v. Selden, 6 Cowen, 162; Merrill v. Ithaca & Owego R, R. Co., 16 Wend. 595.) Entries and memoranda made by deceased persons in the usual course, of business, though not the most satisfactory kind of evidence, are received from the necessity of the case; and the evidence is not admissible where that necessity does not exist.

Motion granted. 
      
       See Bank af Monroe v. Culver and others, ante, p. 531. -
     