Bennett v. Atwood , 1876 N.H. LEXIS 88 ( 1876 )

FROM CARROLL CIRCUIT COURT. I think the ruling in this case was wrong. By entering into an agreement to refer their cause under a rule of court, the parties withdrew it from the operation of the laws which prescribe the order and mode of proceeding in suits at law. In place of a trial by jury or by the court, was substituted a trial before a tribunal which they selected and made for themselves; and their agreement as to the course of proceedings, and the disposition of the case thereupon, became the law by which their rights and obligations were fixed. They agreed that judgment on the report of the referee should be final and conclusive; and when such judgment had been entered, neither could draw back and insist upon rights which were incident to a mode of proceeding which they had expressly abandoned and waived. Certainly, after such judgment, it is too late for the defeated party to claim another trial, either by jury or another referee, by way of review. He is precluded from that by the agreement he has made, and the statute does not apply. I think the defendant's exception should be sustained.