Morse v. Allen , 45 N.H. 571 ( 1864 )

Bartlett, J.

In the taxation of costs, a commissioner acts for the court, and his taxation when adopted stands like one made by the court, Fabyan v. Russell, 39 N. H. 402, S. C. 38 N. H. 86, Price v. Dearborn, 34 N. H. 486; and as mistakes'in the taxation of costs, apparent on the record, may be corrected upon writ of error or except tions carried to the law term, as the case may require, Bedel v. Goodall, 26 N. H. 92, Ford v. Wright, 7 N. H. 586, Chamberlain v. Sterling, 26 N. H. 116, Murray v. Emmons, 26 N. H. 523, West v. Whitney, 26 N. H. 316, Stratton v. Upton, 36 N. H. 582, Peebles v. Rand, 43 N. H. 342, Flanders v. Bank, 43 N. H. 383, it would follow that the record should set forth what costs were allowed; and such seems to be the mode of procedure contemplated by our rules of court. Rules 61, 62 and 63.

Perhaps the court, at the trial term, upon seasonable application and good cause shown, might reject or recommit the report of such a commissioner, Palmer v. Palmer, 38 N. H. 421, Fabyan v. Russell, 38 N. H. 87; but it is by no means clear that the court would, under ordinary circumstances, review his finding upon a question of fact to be determined on the weight of evidence, for it would stand like the finding of the court, which, in such a case, is not ordinarily revisable. Bowman v. Sanborn, 25 N. H. 105; Groton’s Petition, 43 N. H. 92; Taylor v. Dustin, 43 N. H. 495. While the report stands accepted, as it must be taken to have been here, where judgment was entered up in accordance with it, it is part of the record and cannot be contradicted or controlled by parol evidence, Fabyan v. Russell, 39 N. H. 399; and if the plaintiff was dissatisfied with the disallowance of any item of costs claimed by him, and the facts did not appear upon the record, he might perhaps have caused them to be incorporated in it. See Hayward v. Bath, 35 N. H. 522; Landaff’s Petition, 34 N. H. 163.

Even if the findings of such a commissioner upon questions of fact, which are to be decided upon the weight of evidence, were in general open to re-examination by the court, they would not be so in the present case. No fraud, accident or mistake is shown, and the plaintiff, by assenting to the reception of oral evidence by the commissioner upon these questions, has waived his right to have such evidence made part of the record; and as the court cannot go outside of the record except as to matters judicially noticed, he has therefore waived any right, if he had any, to a revision of the commissioner’s findings upon questions of fact made wholly or in part upon the oral evidence. Haynes v. Thom, 28 N. H. 398; Brown v. Dudley, 33 N. H. 514.

Upon the facts stated, we see no case made for any further order than a recommitment of the report to the commissioner, that he may state the items of costs allowed; and it will then sufficiently appear what he disallowed, as the bill of costs claimed by the plaintiff has been made part of the report. The plaintiff may have such an order, if he desires; but whether such an amendment of the record will ultimately avail him any thing upon his writ of error, is a question not now before us.