The statute provides that "upon the return of the report of an auditor a jury trial may be had at the election of either party, and on such trial the report shall be given in evidence subject to be impeached by either party." Gen. Stats., c. 212, s. 8. The defendant contends that the report is not evidence for either party on the trial of the action on review; that the phrase "on such trial" relates to the trial elected on the return of the report. In the statute giving the right of review, the provision is that the action shall be tried as if no judgment had been rendered (Gen. Stats., c. 215, s. 9); and this applies to all trials on review commenced by writ, or where the action is brought forward on motion. It is immaterial whether the action of review is regarded as a new action or not; it is to be tried as if no judgment had been rendered, as if there had been a trial and a disagreement of the jury, or the verdict had been set aside, and it is conceded that in such case the report is evidence. When the case has been sent an auditor and the report has been returned, it is, by the statute, *Page 181 evidence which may be used on the trial before the jury if either party elect such trial. The phrase "on such trial" refers to the jury trial which the parties are entitled to after the return of the report, and this includes the trial upon review. Pollard v. Verbeck, 16 N.H. 435; Stalbird v. Beattie, 36 N.H. 455. An auditor's report as evidence stands much like depositions taken to be used on the first trial of an action, and the uniform practise has been to use them on all trials of the same issue between the same parties, whether the trial is before the jury, or referees, or on renew. The fact that they were not taken to be used on the particular trial on which they were offered has never been regarded a valid objection to their admissibility.

In the hearing before the auditor, both parties have an opportunity to be present, to cross-examine the witnesses, and to be heard by themselves and their counsel. Why, then, should not the report be evidence on any trial between the same parties on the same issue? Why should the parties be subjected to the expense of a second trial before a new auditor? No satisfactory reason can be assigned.

Page v. Brewster, 58 N.H. 126, is not in point. There the court were called upon to construe the agreement of the parties, and the question was that the parties understood and intended by it.

The statements of the accounts furnished by the defendant were competent on the question of a new promise. They tended to prove that the defendant admitted that there was something due, which he was willing to pay. Brown v. Latham, 58 N.H. 30; Dodge v. Leavitt, 59 N.H. 245.

The referee reports that there was no material evidence to support a new promise aside from that furnished by the defendant's written statements. This being the case, the plaintiffs are not entitled to judgment for any greater sum than the defendant admitted to be due and expressed a willingness to pay. To these sums there should be added interest at the rate computed by the referee. Peirce v. Rowe, 1 N.H. 179; Gordon v. West,8 N.H. 444 Knowlton v. Bradley, 17 N.H. 458.

Case discharged.

CLARK, J., did not sit: the others concurred. *Page 182