Baker v. Merrifield, 13 N.H. 357

Baker v. Merrifield

13 N.H. 357 | Superior Court of New Hampshire | 1843

Gilchrist, J.

At the time of the submission no judgment had been rendered on the appeal. It has been held in this state, that the intendment of law is, that judgment is entered on the last day of the term, unless it appear by the record to have been entered on a different day. • Strafford Bank *359vs. Cornell, 2 N. H. Rep. 324. The submission having been made during the term, the cause of action for which the defendant’s suit was brought against the plaintiff had not then passed into judgment, for the judgment of the justice of the peace was vacated by the appeal taken from it by the plaintiff, except for the purpose of serving as a foundation for a judgment of affirmation, ft was not, then, a judgment at the time of the submission, and its merits could be inquired into, like the merits of any other demand. This matter, then, affords no reason for setting aside the report.

But even if it had been a judgment, and had possessed all the conclusiveness belonging thereto, its merits might in such a case as this have been examined by the referees. The defendant considered it as embraced in the submission, because at the hearing before the referees he presented it, and relied upon it as evidence of an indebtment from the plaintiff. When it came before the referees, they had a right to examine it. They were not bound by the legal qualities which might have belonged to it in a court of law. If they considered the judgment inequitable, they were at liberty to disregard it in whole or in part, and to decide according to what they considered the equity of the case. Greenongh vs. Rolfe, 4 N. H. Rep. 357. They might admit evidence to show it was improperly rendered on the merits, as they might admit other evidence which would be inadmissible in a court of law. Chesley vs. Chesley, 10 N. H. Rep. 327. The motion to set it aside is, therefore, overruled, and there must be Judgment on the report.