Parker v. Burns
1876 N.H. LEXIS 132
N.H.
1876
Check Treatment

*1 PARKER BURNS. Parker Burns. Aug. 11, 1876.

Nonsuit —Evidence—Waiver. 97, 13, section chapter sent to a under Acts of 1874, action was An The referee reported generally favor of upon motion moved to Held, The defendant. action, refer the waived by moving objection he plaintiff, of the report made to the introduction as have evidence to the might inasmuch as the statute makes evidence, sub- jury; evidence, the impeached by become non- ject matter of as From Cobs Circuit term, 1875, this cause motion at the re- April On the order of court. The referee made general report ferred The also found that the plaintiff’s defendant. cause of writ, of limitations. The barred the statute pleadings, action of this At the are made case. November part term, and the report elected trial 1875, jury, was continued. term, the case not for the 1876, after marking At the leave to become which was denied. asked The plain- to become nonsuit in reason desired why tiff gave court, in county in the Essex the state is now of Ver- pending there mont, Burns, said his favor note in this suit in Vermont was which begun July 31, declared of said served attachment Burns’s 1874, and was in was entered in property Burns, and a service state, personal that said court at the said Burns September when county ap- counsel, thereto; and said action and answered has since peared further The proceedings. continued without the court ordered no cause judgment upon shown defendant; in favor of the which excepted. transferred, including discretion, Cause Rand,

C. C. for the plaintiff. and Heywood,

Burns The question state, wit, in three cases discussed Judge H. Wright Bartlett, 45 N. H. 289, H. Converse, 54 N. result of the examination the cases the trial of an action is that, before opened After the case is a right, discretion, in its the verdict returned, PARKER BURNS. a nonsuit. After after verdict permit was tbe *2 the law term, ordered for the has been at set aside the plaintiff the case of In v. may right, Fulford Converse,it held, that after an action has statutes, was the been upon auditor, found after, committed an and on he has for the trial, a de- fendant, the cannot then plaintiff become This is of the auditor put upon may ground report evidence; read to the it is conclusive jury defendant ; unless it is that the a impeached by and nonsuit de- plaintiff stroy this evidence. The a to trial by has a right jury, and may impeach the if he can. report This last case be conclusive against the to a non- plaintiff’s right if the court should hold a that the report right be read to the if jury evidence. But it should be that this can- not be done then the against it is objection against whom party of our a position case has trial, untrammelled ifas no trial had been had and the defendant is of no if a deprived judg- ment of nonsuit permitted. contend, also, that the reasons set forth the case are strong We. grounds why the court should its discretion in exercise Or. A. Bingham whom Brew (with were Heywood and Bay, f Fletcher for the defendant. Fletcher), $ I. The refusal order the nonsuit clearly within the authority of the court. The plaintiff could not become nonsuit as a matter of right. The case 54 N. EL 548, is in and Converse, decisive bar. at case II. If this is a of discretion in court as to whether a nonsuit should allowed, it was exercised the court in properly it. refusing It is not the of the court to policy encourage litigation, . at than to further, least, a full fair trial in give parties one juris- diction. It will not allow a nonsuit, after a trial adverse report, in order to trial, enable avoid the effect of such a harass de the defendant novo another jurisdiction. Judge of 22; 13 N. EL 45 N. H. 289 Locke v. Wright Bartlett, Wood, 316; Taylor Mass. Ham. 144 Hendrick Alexander, Stewart, 1 Overt. 476.

Smith, J. auditor, When an action has referred to a a has too late for it is hearing ground to become nonsuit. This is put evidence, makes the it conclusive unless if and that would not be conclusive he report against nonsuit; or, words, be an unjust that would to hold that the construction statute allows the privilege PARKER v. BURNS. defendant, destroying is denied —of 54 H. 543. instead of evidence. Does ? any differently stand during to trial been questioned us, from the case before argument. appears, Laws, act of 1874 Sess. (2 p. 342), referred under the term, 1875, in of at the November elect coming and at the marked the case not for trial by jury, ed cause for a failing show judgment the act of 1874 a By report. ordered is reserved cases referred without the consent of only it after of the referee may request when either party Laws, of 1875 The act commit p. provides is made. ting (2 460) agreement parties, reserving par cause to referees *3 As trial this case does not within the ex of fall by jury. ty statute, not for either there does seem to be any ground of ception If, is had then, such a trial. held that the plaintiff to claim or of to under the statute of 1874 by jury, no trial under the doctrine as in Con whether, arises held of as a matter verse, the plaintiff supra, for nor It in that that neither the reason the rule said, cannot as a matter of rule itself—that is and that after verdict after the case there the tri- he not name or form of depend upon no nonsuit —does can is to be tried it be called a or which the case whether bunal by pro- arbitrators, immaterial, or is name, board of or ordinary jury. of substantially place vided it is tribunal filling lost his If of this case referee sending no to show trial tribunal argument needs by jury, of his and therefore that he has had all the trial substituted his of a favorable he entitled. taken chance Having deprive now that he is in the cannot, result, disappointed to which he is entitled from the advantage finding the defendant of the his in favor. did not his right But it be held that the lose suppose the referee: does go “ in ? The all any without the consent provision he then stand better of they wherein cases referred may, at the either request law entitled to in after the the referee has by jury party, with the same limitations as in the case same manner and shall of an auditor such trial to be therein, of all the facts stated subject evidence 342. The making provision, Laws party.” held the consent of cases referred without evidence of the court to be unconstitutional. King by majority Hopkins, without the consent But case was sent ante, 334. motion, On it was done his the contrary,

NOYES v. BARNET. his I think that with consent. that was consequently effect a pro- the mode of accept of his disposition posal It by the statute. was an offer to express provided accept whole was a statute, with all its provisions. waiver objection to introduction of as evidence to case there be a trial. then, The case of and decisive case. The unless report being conclusive impeached by evi- dence, the it by becoming nonsuit. impeach C. J. The case Moore, of Pollard 51 N. H. 188, Cushing, bemay resting on the cited same There a mill-owner, under the principle. act of 1868 for encouragement had manufactures, filed his peti tion the assessment of the land-owner’s damages. damages assessed, it having been petitioner not avoid the effect of this becoming assessment by nonsuit. To the same effect is Farmington v. 56 N. H. 218. Copp, Ladd, concurred. overruled.

Exceptions Aug. 11, Noyes Barnet. *4 suit&emdash;Parties. Foreclosure "Where to secure notes held mortgage given several different a writ of entry to foreclose the mortgage must be in the names of all owners of notes. From Coos Circuit op Entry, Plea, mortgage. general issue. The Writ court, and the court found that said mortgage five one, secure notes given payable two, three, four, and five 1,1873. from first January note has years, paid, the holder two notes due on January 1,1874-75 re- two notes aby third spectively, remaining party. assignment was no formal The defendants There mortgage. on the ground moved that the holder of the other notes have been where there are notes several secured joined; are held in a the same different mortgage, must all mortgage they foreclose the otherwise the joined, maintained;&emdash;but cannot be overruled the proforma, motion, and The court then found for the the defendants excepted.