56 N.H. 49 | N.H. | 1875
FROM HILLSBOROUGH CIRCUIT COURT. The agreement to refer, being entitled as of term, may be placed on the files and become a part of the papers in the case. The authorities show conclusively that this agreement, being so made, is one that the court ought to enforce. The fact that the parties included in this agreement another agreement for the disposition of a suit between the plaintiff and another defendant, does not furnish any reason why the agreement between these parties, which appears to be distinct, should not be enforced. It is true the submission was not by a rule of the court, but I see no reason why it should not be treated as if it were; and as between the parties to the suit, I can see no reason on principle why, the parties having agreed that judgment should be rendered in this suit, judgment should not be so rendered. The original agreement being a reference of all claims between the parties, would, of course, include everything, and the award with judgment upon it might be pleaded in bar against any other suit by the plaintiff for matters accruing prior to the submission, unless the plaintiff should show that such matter had not been in fact heard.
As to the effect of the reference upon the attachment of the defendant's real estate, I cannot see that any question arises in this suit. The plaintiff being entitled to judgment should have it, and that without any reference to the question whether or not these proceedings have dissolved the attachment, or whether he can collect his judgment.
I do not see, in the case stated, anything which shows that the referee has not in all particulars pursued the submission, or that there is anything improper in his conduct in any particular, — and as the award with judgment upon it will be conclusive upon all matters laid before him, I cannot see any benefit to be gained by sending back the report for further details.
To the point that this agreement will be specifically enforced, see Fernald v. Ladd,
It is believed that the practice is thoroughly established, that agreements entitled as of term will be treated as if made in court.
LADD and SMITH, JJ., concurred.
Exceptions overruled. *54