The reference being by the agreement of parties, the objection to the use of the report as evidence before the jury
was waived. Laws of 1875, c. 35, s. 3; Laws of 1874, c. 97, s. 13; Garland v. Towne, 58 N.H. 187; Smith v. Fellows, 58 N.H. 169; Daniels v. Lebanon,58 N.H. 284. The statute required the referee to state specifically his rulings upon all questions of law, and all matters of fact found proved, if either party requested. The plaintiff having made the request, the referee properly complied with the statute, and his report was not rendered incompetent as evidence because it contained matters required by law. Pollard v. Verbeck, 16 N.H. 435. The referee's erroneous conclusions of law and fact did not make his report inadmissible. The law required him to state them in the report. The court properly instructed the jury as to the errors, so that no misapprehension could have occurred on account of them.
The offer of the defendants to prove that the evidence before the jury was different from that before the referee was properly rejected. Bellows v. Woods, 18 N.H. 305.
The court instructed the jury that the referee's report was not evidence, and was not to be weighed or considered by them as evidence; that it changed the burden of proof on the general issue, and established the defendants' guilt until they showed by a preponderance of evidence, not including the report, that they were not guilty. The referee law of 1874 (c. 79, s. 13) provided that in all cases wherein parties were entitled by law to a trial by jury, the same might, at the request of either party, be tried by jury after the report of the referee had been made, in the same manner and with the same limitations as in the case of the report of an auditor, and upon such trial by jury the report should be evidence of all the facts stated therein, subject to be impeached by either party. When the referee law was enacted, the auditor law had existed many years, and its construction had been established. Stevens v. Hall, 6 N.H. 508; Bellows v. Woods, 18 N.H. 305; Mathes v. Bennett, 21 N.H. 188; Shoutee v. Swindles,37 N.H. 559; Knowlton v. Tilton, 38 N.H. 257; Drew v. Claggett,39 N.H. 431; Conner v. Company, 40 N.H. 537; Stone v. Aldrich, 43 N.H. 52; Lull v. Cass, 43 N.H. 62; Pickering v. DeRochemont, 45 N.H. 67; Fulford v. Converse, 54 N.H. 543. The language of the referee law of 1874 clearly indicates that it was the intent of the legislature that it should be subject to the same construction that had been given the auditor law, and that the report of a referee should have the same effect as evidence in a trial by jury as the report of an auditor. Copp v. Henniker, 55 N.H. 179,204; King v. Hopkins, 57 N.H. 334, 354. Upon the report of an auditor either party may elect to try the cause by jury, and upon such trial the report shall be given in evidence, subject to be impeached by either party. G. L., c. 231, s. 8. The findings of an auditor are prima facie evidence, entitling the party in whose favor they are to a verdict, unless they are impeached or controlled by other evidence in the case. Drew v. Claggett,39 N.H. 431;
Knowlton v. Tilton, 38 N.H. 257. At one time it was held in Massachusetts, which has an auditor law, of which ours is a substantial copy, that the report changed the burden of proof. Allen v. Hawks, 11 Pick. 359; Jones v. Stevens, 5 Met. 373, 378; Company v. Richmond, 8 Met. 434. But it is now held otherwise in that state. Morgan v. Morse, 13 Gray 150; Brewer v. Company, 104 Mass. 593. Cases may be found in this state in which language is used which might be construed to mean that the party against whom the report is must show by a preponderance of evidence that the conclusions of the auditor are wrong; but we think, on an examination of the cases, it will be found that the report has never been held to place the burden of proof upon the defendant on the general issue. An auditor's report does not change the issue tried by the auditor. When the case comes before the jury, the questions to be tried are still the same, the only change being that the party in whose favor the report is has obtained an additional piece of evidence, a piece of evidence that proves his case in the absence of other evidence. If it is in favor of the party upon whom by the pleadings the burden of proof rests, it does not change the burden, but it is simply evidence on all the points in his case, like other evidence; and when the opposite party gives evidence of just equal weight, so that the scales balance, he is obliged to go no farther. The report in this case was evidence on all the points necessary for the plaintiff to prove to enable him to recover; the defendants could then give evidence to impeach or meet the plaintiff's case; and when the evidence was all in, to enable the plaintiff to recover he should have had a preponderance of evidence in his favor, on the points where the burden was upon him on the original pleadings. In this sense the report is prima facie evidence for the party in whole favor it is.
Verdict set aside.
DOE, C.J., and FOSTER and ALLEN, JJ., did not sit: the others concurred.