Wilcox, J.
If the plaintiffs had relied upon their account books, accompanied by their suppletory oaths, as evidence to support their claim, it would have been necessary for them to produce the ledger, into which it appeared by marks upon the day-books that the accounts had been posted. Eastman v. Moulton, 3 N. H. 156; Prince v. Swett, 2 Mass. 569. But such was not the nature of the plaintiffs’ proof. They relied upon evidence of the defendant’s admission of his liability, resulting from a settlement and adjustment of the accounts. The settlement was shown, and the books were produced to show what was settled.
Nor is it an objection that the entries in the books produced were not made by the witness; for, as has been said, the plaintiffs did not rely upon the entries as proof of the promises charged, but upon the admission of the defendant that the entries, by whomsoever made, were correct.
Nor is it a sound objection that tbe witness testified from pencil marks, and that they had been, since they were made, in the custody of the plaintiffs, if these marks or minutes were of such a character that he could identify them as having been made by himself, and could rely upon them.
The defendant also objects that the plaintiffs did not appear personally, and answer interrogatories in relation to the matters in controversy. A party before an auditor, has the right to the testimony of his adversary; but he cannot be required to testify, unless he be present at the auditing, or unless he has had reasonable notice from the other party that his testimony will be required, so that he may attend. A simple notice of the time and place of hearing, issued by the auditor, does not impose upon the party the duty of a personal attendance. If, in the course of the hearing, it becomes necessary for one party to require of the other to produce books and papers, or to answer interrogatories on oath, and the books and papers or the party are not present, application should be made to the auditor for delay, that notice may be given to the party to produce his books and papers, or to attend and answer interrogatories. For without such special notice a party is not bound to attend as the witness of his adversary, or to carry books and papers to be subjected to his examination, in the doubtful event of such examination being required at the hearing.
The defendant claimed to be allowed in set-off $75, for which he produced a receipt given him by the plaintiffs’ clerk. The plaintiffs alleged that although the receipt was given to the defendant, the amount had been allowed to him and his partner Gilbert, and the plaintiffs’ cashbook was produced as evidence of that fact.
The cash-book would not be evidence of the plaintiffs’ right so to apply money receipted to the defendant alone. But the defendant being required to answer interrogato ries concerning tbat receipt refused to do so. His set-off cannot, therefore, be allowed, unless bis refusal was upon sufficient ground.
He refused to answer unless tbe plaintiffs would also answer interrogatories relative to tbe matters in controversy. Tbe defendant being present, was bound to answer*. If be wanted answers from tbe plaintiffs, bis course was, as bas been suggested, to apply to tbe auditor for time to give tbe necessary notice to tbe plaintiffs tbat tbeir services were required. Tbeir absence afforded biin no excuse for declining to answer concerning tbe claim wbicb be presented, and tbe claim was, therefore, justly disallowed.
Judgment for the plaintiffs on the report.