Lead Opinion

FROM MERRIMACK CIRCUIT COURT. I have not seen sufficient reason to change my mind since the question raised by this case was decided in Ray v. Austin, 56 N.H. 36. I thought then, and think now, that secs. 5 and 6 of ch. 212, Gen. Stats., cannot be incorporated by construction into the reference law of 1874; and I know of no rule of law which makes a judgment as upon default, or nonsuit, the only punishment which the court can visit upon a party who omits to appear before a referee, whether such omission be due to his misfortune, his contumacy, or his dislike of the law. I think the exception should be overruled.

Concurrence Opinion

Whatever I might have thought if this case had arisen after the promulgation of the Rules at December term, 1875, I do not see any occasion to revise the ruling which was made before the amendment of the law in 1875, and the promulgation of Rule 67, in December, 1875.

STANLEY, J., C. C., concurred.

Exceptions overruled.