60 N.H. 115 | N.H. | 1880
The issue before the auditor was on the question of Cummings's liability. The discontinuance of the action as to *116
Atwood, though made after the auditor's report, left the action the same as if it had been originally against Cummings alone. Whittier v. Varney,
The instructions to the jury, that the introduction of the auditor's report shifted the burden of proof from the plaintiffs to the defendant, could not have been understood as using the phrase "burden of proof" in the technical sense that a new and independant [independent] issue was thereby made, the affirmative of which the defendant, in order to prevail, must sustain by a preponderance of evidence. Any such meaning placed upon the instructions would have made the report a mere pleading, and destroyed its force as evidence, whereas by the instructions it was distinctly made evidence to be weighed with other testimony by the jury. By the statute, the auditor's report is made evidence at a jury trial, subject to be impeached by either party; and by the decisions of the court, both in this state and in Massachusetts, where the law governing auditors' reports is the same, the report makes a prima facie case for the party in whose favor it is, and entitling him to a verdict, unless it is met and controlled by evidence from the other side. Stevens v. Hall,
The auditor's report was, in effect, made prima facie evidence, and the plaintiffs, having legal evidence on all points necessary to maintain the issue, would prevail unless that evidence was met by evidence of at least equal weight from the defendant. The report was not evidence which could be explained away or contradicted like other evidence, nor could the credit to be given to it be lessened by showing error or mistake in the proceeding before the auditor, or that he failed to correctly weigh the testimony before him. Bellows v. Woods, supra. No distinct and separate issue could be made on the finding of the auditor. Brewer v. Hyndman,
Judgment on the verdict.
BINGHAM, J., did not sit: the others concurred.