FROM COOS CIRCUIT COURT. When an action has been referred to an auditor, and a report after a hearing has been made to the court, it is too late for the plaintiff to become nonsuit. This is put upon the ground that the statute makes the report conclusive unless it is impeached by evidence, and that a report against the plaintiff would not be conclusive if he could become nonsuit; or, in other words, that it would be an unjust construction to hold that the statute allows the plaintiff a privilege *Page 604 which is denied the defendant, — of destroying an adverse report by a nonsuit instead of evidence. Fulford v. Converse, 54 N.H. 543. Does this case stand any differently?
The plaintiff's right to a trial by jury has not been questioned during the argument. It appears, from the report of the case before us, that it was referred under the act of 1874 (2 Sess. Laws, p. 342), and upon the coming in of the report at the November term, 1875, the plaintiff elected trial by jury, and at the April term, 1876, marked the case not for the jury, and failing to show cause for a continuance, judgment was ordered against him upon the report. By the act of 1874 a right to trial by jury is reserved only in cases referred without the consent of parties, when either party may request it after the report of the referee is made. The act of 1875 (2 Sess. Laws, p. 460) provides for committing a cause to referees by agreement of parties, reserving to either party the right of trial by jury. As this case does not fall within the exception of either statute, there does not seem to be any ground for the plaintiff to claim such a trial. If, then, it is held that the plaintiff had no right to trial by jury, under the statute of 1874 or that of 1875, the question arises whether, under the doctrine as held in Fulford v. Converse, supra, the plaintiff may become nonsuit as a matter of right.
It was said, in that case, that neither the reason for the rule nor the rule itself — that the plaintiff cannot become nonsuit as a matter of right after the case is opened to the jury, and that after verdict there can be no nonsuit — does not depend upon the name or form of the tribunal by which the case is to be tried; whether it be called a jury, or court, or board of arbitrators, or any other name, is immaterial, provided it is a tribunal substantially filling the ordinary place of a jury. If by the sending of this case to a referee the plaintiff lost his right to a trial by jury, it needs no argument to show that that tribunal was substituted for the jury, and therefore that he has had all the trial of his suit to which he is entitled. Having taken his chance of a favorable report, he cannot, now that he is disappointed in the result, deprive the defendant of the advantage to which he is entitled from the finding in his favor.
But suppose it be held that the plaintiff did not lose his right to go to the jury after having an adverse report made by the referee: does he then stand any better? The provision of the statute is, that "in all cases referred without the consent of the parties, wherein they are by law entitled to a trial by jury, the same may, at the request of either party, be tried by jury after the report of the referee has been made, in the same manner and with the same limitations as in the case of the report of an auditor; and upon such trial by jury said report shall be evidence of all the facts stated therein, subject to be impeached by either party." 2 Sess. Laws 342. The provision, making the report evidence in cases referred without the consent of parties, has been held by a majority of the court to be unconstitutional. King v. Hopkins, ante, 334. But this case was not sent to a referee without the consent of the plaintiff. On the contrary, it was done upon his motion, and *Page 605 consequently with his consent. I think that that was in effect a proposal by him to accept the mode of trial and disposition of his case provided by the statute. It was an express offer to accept the whole statute, with all its provisions. It was a waiver of any objection to the introduction of the report as evidence to the jury, in case there should be a jury trial.
The case of Fulford v. Converse, then, is fully in point, and decisive of this case. The report being conclusive unless impeached by evidence, the plaintiff cannot impeach it by becoming nonsuit.
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