dissenting. In this case the witness swore the account was correct, and it was therefore received in evidence. He was not cross-examined, nor was any objection made to the admission of the evidence. The District Judge believed him and gave judgment. I cannot say I disbelieve him.
There was a judgment by default, and there is no entry setting it aside, and no answer appears in the transcript.
If there was no answer, its absence and the judgment by default are corroborating circumstances. See Lopez v. Bugel, 7 L. R. 181 ; Leeds v. Debuys, 4 Rob. 257.
*271If there was an answer, which has been lost or mislaid, non constat, but it contained admission, inconsistent with the objection to the sufficiency of evidence, now suggested in argument merely, by the appellant’s counsel. If we were permitted to entertain presumptions as to the contents of an answer, the existence of which is not shown, and is not even positively asserted by the appellant’s counsel, upon what principle should we presume in favor of the defendants, in face of the opinion of the District Judge?
We all agree that, there was no legal excuse for the absence of defendant’s counsel at the trial. It will be a dangerous precedent to reverse an opinion of a District Judge on a question of facts, where the witness has sworn positively, where the District Judge believed him, and the appellant suggests here objections which should have been the subject below of exception or cross-examination. Such a precedent might be an encouragement to counsel for defendants to be absent from trial. I have also to observe that the clerk’s certificate of the transcript is defective.
I think the judgment should not be disturbed.
Spofford, J., concurs in the opinion.