Perkins v. Scott

Supreme Court of New Hampshire

Perkins v. Scott

57 N.H. 55, 1876 N.H. LEXIS 53

CourtSupreme Court of New Hampshire

DecidedMarch 21, 1876

StatusPublished

Cited by4 cases

This text of 57 N.H. 55 (Perkins v. Scott) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Perkins v. Scott, 57 N.H. 55, 1876 N.H. LEXIS 53 (N.H. 1876).

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FROM GRAFTON CIRCUIT COURT. I do not think this report ought to be set aside. The affidavits taken together do not satisfy me that any objection as to interest or bias is made out which ought to furnish reason to the party for recusing the auditor. Neither do I think that the report ought to be set aside on the ground that the auditor law, so called, is unconstitutional. I understand the objection to be, that that part of the statute which makes the report of the auditor evidence to be used before the jury is in violation of the party's constitutional right to a trial by jury. This provision is an integral part of the statute. It is impossible to dispense with that provision, and leave that part which provides for sending causes to auditors with the meaning and force which the legislature intended to give it. If the auditor's report cannot go to the jury, the court cannot send the case to an auditor.

This being so, I think it clear that the objection must be taken, if at all, at the time of the reference. The party cannot be permitted to lie by and take his chance of getting a favorable report, and then, if he is not satisfied with it, cause it to be rejected.

I also hold, for reasons assigned in my dissenting opinion in the case of King v. Hopkins, Hillsborough June term, 1876, that the law is not unconstitutional.

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FROM GRAFTON CIRCUIT COURT. I do not think this report ought to be set aside. The affidavits taken together do not satisfy me that any objection as to interest or bias is made out which ought to furnish reason to the party for recusing the auditor. Neither do I think that the report ought to be set aside on the ground that the auditor law, so called, is unconstitutional. I understand the objection to be, that that part of the statute which makes the report of the auditor evidence to be used before the jury is in violation of the party's constitutional right to a trial by jury. This provision is an integral part of the statute. It is impossible to dispense with that provision, and leave that part which provides for sending causes to auditors with the meaning and force which the legislature intended to give it. If the auditor's report cannot go to the jury, the court cannot send the case to an auditor.

This being so, I think it clear that the objection must be taken, if at all, at the time of the reference. The party cannot be permitted to lie by and take his chance of getting a favorable report, and then, if he is not satisfied with it, cause it to be rejected.

I also hold, for reasons assigned in my dissenting opinion in the case of King v. Hopkins, Hillsborough June term, 1876, that the law is not unconstitutional.

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Bluebook (online)

57 N.H. 55, 1876 N.H. LEXIS 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perkins-v-scott-nh-1876.

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