Conner v. New-England Steam & Gas Pipe Co. , 40 N.H. 537 ( 1860 )

Sargent, J.

The Revised Statutes (oh. 189), provide for the appointment of one or more auditors in certain cases, and prescribe their duties. Section 5 also provides that “ if either party is dissatisfied with the report, the case may be tried by jury, and such report shall be given in evidence to the jury, subject to be impeached by evidence offered by either party.” The report being thus made evidence competent for the jury to consider, it would of course, if introduced in the absence of all other testimony, be sufficient to establish all the facts found in it. Now it not unfrequently happens, as in this case, that the auditor, in stating the account, finds some of the facts in favor of one, and other facts in favor of the other party. The report therefore would be in such cases evidence for one party upon some points, and for the other party upon others.

If it were to be held that the party who should introduce the report, as evidence of such facts as are there found in his favor, was to be estopped from impeaching the report in other respects, where the finding was against him, the result would inevitably be that neither party would in such a case introduce the report, and the parties would be compelled to have all their testimony at court to he used before the jury, in order to prove the facts which were found in their favor respectively in the report, and of which the report would be sufficient evidence, if introduced, and that, too, frequently in relation to facts in regard to which neither party would expect or desire to change the report.

We think the intention of the law was that the report should be submitted to the jury in all cases, so that, whatever was there found, that neither party objected to, need not be proved by any other evidence, and that neither party might need to be prepared with testimony upon any points except those upon which they desired to change the report. We conclude also that it makes no difference ■which, side introduces tbe report; that either party may do so without being estopped to deny its correctness in any particular, or precluded from impeaching it; and that the party introducing the report needs no more evidence on his part to impeach it in any respect, than he would if it had been introduced by the other party; that either party may impeach the report in such particulars as they choose, without any regard to the fact as to which of them first introduced it as evidence before the jury; and that in all particulars, where not thus impeached, the report is to be confirmed. There must be

Judgment on the verdict.