GiLcteisT, J.
The first section of chapter 189 of the Revised Statutes enacts that in certain cases the court may appoint one or more auditors “ to state the account between the parties, and make report to the court.” The fifth section provides that the report shall be given in evidence to the jury. Whether the report be of such a character that it may legally be given in evidence, is, of course, a question of law to be determined by the court.
The statutory duty of the auditor is simply to state the account between the parties, and this requires the auditor to *429determine how much of the respective accounts he considers to be proved upon the evidence submitted to him. His course is plain and his duty is easy, except where from the complicated character of the evidence it may be difficult to determine what charges are or are not proved. But in addition to this, a practice has grown up, to which we see no objection, of laying before the auditor evidence of facts which raise questions of law. Where both parties assent to this, and the auditor submits the questions of law for the consideration of the court, we have regarded the case as a statement of facts agreed to by the parties, and have considered and adjudged upon it accordingly. But beyond this, matters not pertaining to the duty of the auditor have been considered to be out of their proper place when found in his report. And it is often the case that upon motion a report is re-committed to the auditor, with instructions to him to strike out from it the extraneous matter, leaving only a statement of the account. While any statements of facts or conclusions remain in the report, which are not properly within the province of the auditor, it is very obvious that the report is not legally an instrument of evidence, particularly where those statements may have an unfavorable bearing upon the case of either of the parties. This is the foundation of our rule of practice, that a deposition shall not be delivered to the jury from which any part has been erased as incompetent for their consideration, however carefully they may have been enjoined by the court to disregard the incompetent matter.
In the present case the auditor has reported that the plaintiff’s charges were all proved. He has stated in addition the defendant’s objections to the charges, and the plaintiff’s answers to these objections. He has in this gone beyond his duty. These matters are improperly in his report, and so long as they are in that form are improper for the consideration of the jury. What weight they had with the jury we cannot determine. Perhaps they had none, and perhaps the jury came more readily to a conclusion in favor of the plain*430tiff than they otherwise would have done ; and perhaps the arguments of the defendant’s counsel might have convinced them that the auditor must have been deceived or mistaken, if the objectionable matters had not been there. However this may have been, the party’s case might have appeared better before the jury without the parts excepted to. It is enough that the report was not a legally competent instrument of evidence, and should not have been submitted to the jury. For this cause the verdict must be set aside, and there must be a
New trial.