Nutter v. DeRochemont

46 N.H. 80

• Court: Supreme Court of New Hampshire
• Decided: June 15, 1865
• Status: Published

Opinion

Bartlett, J.

It is not very important whether the special plea was filed in season under the general rules, as, if not, it was, under the circumstances of the case, within the discretion of the court at the trial term to receive the pica as they did, and there is nothing to take this case from the operation of the general rule, by which such a decision is not ordinarily revisable here. Tappan v. Tappan, 31 N. H. 51.

The third replication does not show that the infancy of Antoinetta continued until within two years of the commencement of her suit; Angell on Lim. 319; nor that her coverture existed when the cause of action accrued; Angell on Lim. 206; Mercer v. Selden, 1 How. 37; Jackson v. Wheat, 18 Johns. 40; Demarest v. Wynkoop, 3 Johns. Ch. 129; Jackson v. Swartwout, 5 Cow. 74; and the two disabilities cannot be connected to extend the time limited in sec. 8, chap. 181 of the Revised Statutes; Angell on Lim. 206, 520; Eager v. Commonwealth, 4 ; Butler v. Howe, 1 Shep. 402; McFarland v. Stone, 17 Vt. 174; Griswold v. Butler, 8 Conn. 227; Clarke v. Cross, 2 R. I. 440; Thorp v. Raymond, 16 How. 247.

If the report of the auditor stands as accepted the court would hardly commit the case generally to another auditor; Pollard v. Verbeck, 16 N. H. 436; and the mere fact that a declaration has been amended in some respect cannot be sufficient cause for rejecting or recommitting an auditor’s report previously made in the case. Here where the hearing before the auditor and his report were upon the specification, which corresponded with the declaration as subsequently amended, we see no cause, in the mere fact of the amendment, for the rejection or recommitment of the report. Washington Ins. Co. v. Dawes, 6 Gray 376; and see Merrill v. Mellen, 24 N. H. 258.

Although upon the new plea new issues are raised, there is nothing in the ease to show that they are such as should properly go to an auditor; Brewster v. Edgerly, 13 N. H. 283; and as the general issue still stands for trial, as far as that is concerned the report of the auditor would seem to be as material as it would have been if the new issues had not been joined; but if the new issues were not passed upon at all by the auditor, that circumstance would take from the report its weight as evidence so far as those issues are involved. Stone v. Aldrich, 43 N. H. 55. If it be a fact that new evidence has been obtained by the defendant, that alone, without any statement as to its nature or the circumstances under which it was obtained, or of any reason why it was not presented before the auditor, is not a sufficient cause for a recommittal of the report.

The plaintiffs’ exception must be overruled, the defendant’s demurrer sustained, and his motion to commit the case to the auditor, upon the facts as presented in the agreed case, denied.