Farmington v. Copp and Johnson

56 N.H. 218, 1875 N.H. LEXIS 33

Opinions

FROM STRAFFORD CIRCUIT COURT. The question in the first of these cases is identical with that decided in Fulford v. Converse, 54 N.H. 543, and the rule there laid down applies.

In the second, I think the plaintiffs are not now in a position to discontinue their suit in this way. The matter is still pending before the auditor. If the plaintiffs should omit to appear before the auditor, it would be his duty to report that fact to the court, and, in case there had been no report previously made, the judgment would be "as upon nonsuit." Gen. Stats., ch. 212, secs. 5, 6. Whether the fact that there has been one report makes any difference, we need not now inquire. However that may be, while the cause is before the auditor I think the plaintiff is not demandable in court in such was that he may finally elect to proceed no further by becoming nonsuit, and so prevent the discharge by the auditor of a duty imposed upon him by the statute. A report of some sort seems necessary to a just taxation of the defendants' costs. I am of opinion that the exceptions should be sustained in both cases.