Pickering v. Frink, 62 N.H. 342

Pickering v. Frink

62 N.H. 342 | N.H. | 1882

The objection that a case is not a proper one to be heard by an auditor should be made before the reference to the auditor, or it will be regarded as waived. Perkins v. Scott, 57 N.H. 55; Boyd v. Webster, 58 N.H. 336. The conceded fact that an investigation of accounts was required as to a portion of the case shows that the action was proper]y committed to an auditor, and it was his duty to hear, determine, and report upon the whole case. When an action is referred to an auditor, his authority is not limited to an examination of accounts and vouchers merely, but he may consider all matters involved in the issues submitted to him so far as may be necessary to a determination of the indebtedness between the parties. Moulton v. Parker, 35 N.H. 92; Holmes v. Hunt, 122 Mass. 505. As it does not appear that the report contained matters not proper to be reported, it was rightfully received in evidence on the trial before the jury. It is made evidence by statute, and the defendant could not deprive the plaintiff of the benefit of it by confessing a portion of his claim. Fulford v. Converse, 54 N.H. 543; Doyle v. Doyle, 56 N.H. 567; Perkins v. Scott,57 N.H. 55. *Page 344

An unqualified admission of a debt which the party is liable and willing to pay, has the force and effect of a new promise (Holt v. Gage,60 N.H. 536), and if made within six years removes the bar of the statute of limitations in assumpsit, and it is immaterial whether the new promise is made before or after the right of action is barred by the statute. The new promise takes the case out of the operation of the statute, and it runs anew from that time. The decisions, in cases of partial payment of a debt within six years, are decisive of the question raised in this case, for the reason that it is only as evidence of a new promise that a part payment operates to remove the bar of the statute. Whipple v. Stevens, 22 N.H. 219; Wheeler v. Robinson, 50 N.H. 303; Brown v. Latham, 58 N.H. 30.

Exceptions overruled.

BLODGETT, J., did not sit: the others concurred.