| Superior Court of New Hampshire | Jul 15, 1855
This action is stated to be assumpsit, but no specification or statement of the grounds of claim accompanies the case as sent from the common pleas, and we
Four questions are presented by the case: First, was the ruling of the court correct in ordering the rule to be discharged? Second, ought Mr. Goodall to have been permitted to state his defence without being first sworn ? Third, was the testimony in regard to the lease properly received, without producing the lease ? And fourth, was the testimony respecting the money, taken in connexion with the book, competent?
With regard to the first question, we think that the ruling of the court below was wrong, and that the case was not an improper one for an auditor, if the court saw fit to refer it. The grounds upon which the decision was founded are not stated; but we may presume that the ruling was made upon the authority of Brewster v. Edgerly, 13 N.H. 275" court="None" date_filed="1842-12-15" href="https://app.midpage.ai/document/brewster-v-edgerly-8504598?utm_source=webapp" opinion_id="8504598">13 N. H. Rep. 275, in which it was held that the statute does not authorize the reference of a'case to an auditor, where no investigation of accounts or examination of vouchers is necessary, or else upon the ground that there were no accounts or vouchers, on the part of the plaintiff, to be examined. But, we think, the ruling incorrect upon either ground. Whatever may have been the particular character of the plaintiffs’ claim, whether an account, parol contract or other matter-, properly included in the action of assumpsit, the defence required the examination of the defendant’s accounts. This appears from the case. And wherever a cause requires the examination of accounts and vouchers, in any of its parts, whether for the plaintiff’or defendant, it may, in the discretion of the court, be committed to an auditor. This the
In Jones v. Parker, 6 Foster’s Rep. 20, the action was assumpsit upon a promissory note, and the defence rested upon the ground that the note was not that of the defendant, but of the Avery Factory Company ; but it appearing that the trial of the issue would require the examination of several books of account, receipts and other papers, the court held it a proper case for an auditor.
That case is an authority in point for the present one, and shows that the reference to the auditor was correct, and that the rule should not have been discharged.
As to the second point, we need only say that the ruling of the auditor was correct. A party may appear before an auditor, either by himself or by attorney, and, before introducing evidence, may state his case, either by himself or by attorney; and it makes no difference that he afterwards proposes to be a witness. If the auditor sees fit to admit him, it is within his discretion so to do. There is no rule, either of law or of practice, that necessarily excludes him, more especially where the party is himself a member of the legal profession.
But the testimony in regard to the leasing, we think, was incompetent. The lease should have been produced. Notice was given to produce it, and no excuse shown for not complying with the notice. The defendant contended that Pratt was not his agent, while the plaintiffs insisted that he was, and that was one of the questions before the auditor; and had the lease been produced, it might, perhaps, have shown the true relation existing between them. At all events, it was incompetent for the defendant to testify that
The last question relates to the competency of the defendant’s testimony, in connection with his book, as to the payment of the thousand dollars to Pratt. The plaintiffs contended that Pratt was the agent of the defendant, while the defendant insisted that he was not, but that there was an agreement between him and Pratt that he should furnish him $1000 towards rebuilding the factory. It was material for the defendant to show how this was, and that Pratt was not his agent. To make this out, he was himself a witness in chief on the hearing, and in connection with his testimony, in that way, his book was used. That he could be a witness in chief is well settled. Mann v.
Had this been a trial before a jury, in open court, the defendant could not have testified for himself as a witness in chief, nor could he have used his book to establish any fact collateral to the direct issue of debt or credit between himself and the plaintiffs. Books of account are not admissible, as between the parties, to prove independent or collateral facts; for if admitted with the oath of the party, then he testifies for himself; if without his oath, then his naked written statements are received as evidence, and he can thus make testimony for his case. Batchelder v. Sanborn, 2 Foster’s Rep. 325; Woodes v. Dennett, 12 N.H. 510" court="None" date_filed="1842-01-15" href="https://app.midpage.ai/document/woodes-v-dennett-8504544?utm_source=webapp" opinion_id="8504544">12 N. H. Rep. 510; Little v. Wyatt, 14 N.H. 23" court="None" date_filed="1843-07-15" href="https://app.midpage.ai/document/little-v-wyatt-8504641?utm_source=webapp" opinion_id="8504641">14 N. H. Rep. 23.
But the present is not a case of trial before a jury, where the book can only be used with the suppletory oath of the party, and where, with such oath, the book can only prove the debt or credit existing between the parties; but a hearing before an auditor, where the party may, and in this case did, testify in chief for himself, and to such matters as had a tendency to establish his defence. It was not the book that was to prove that Pratt was not his agent, but his own testimony; and, as the court understand the case, the book was only a memorandum of the items. It is with that view that, we think, it was admissible. If we were to understand from the case that the book was admitted to establish the fact that Pratt was not the defendant’s agent, then it would be incompetent.
Holding that the rule appointing the auditor should not be discharged, and that the testimony in regard to the lease was incompetent, the report must of course be recommitted.,
Report recommitted.