delivered the opinion of the Court:
The only point made on this record we deem necessary to consider, is, the one arising on the refusal of the court to permit the books of account of the plaintiff in error, the defendant below, to be received in evidence, he offering to supply the preliminary proof required by the act of February 14, 1867.
It appears there were mutual dealings between these parties. The subject of the suit was three promissory notes, claimed to have been executed and delivered by plaintiff in error to the plaintiff in the action.
Against them, the defendant in the action presented in evidence the receipt of the plaintiff, subsequent to the date of the notes, in full of all demands, and proposed to show by-entries in his books how he had paid these notes, and so account for the giving of the receipt by the plaintiff.
The court- refused to permit the books to be used in evidence, but permitted the defendant to refresh his memory, he being a witness, by reference to the books.
Without the statute of 1867, the defendant would have been entitled to introduce his books of account, on the authority of Boyer v. Sweet, 3 Scam. 120, and the statute does not materially change the rule there announced. We think the court erred in ruling out the books, and for this error the judgment must be reversed and the cause remanded.
Judgment reversed.