Parker v. Burns
Supreme Court of New Hampshire
From Cobs Circuit Court. On the plaintiff’s motion at the April term, 1875, this cause was referred by order of court. The referee made a general report in favor of the defendant. The referee also found that the plaintiff’s cause of action was barred by the statute of limitations. The writ, pleadings, and the report are made a part of this case. At the November term, 1875, the plaintiff elected a trial by jury, and the action was continued.
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From Cobs Circuit Court. On the plaintiff’s motion at the April term, 1875, this cause was referred by order of court. The referee made a general report in favor of the defendant. The referee also found that the plaintiff’s cause of action was barred by the statute of limitations. The writ, pleadings, and the report are made a part of this case. At the November term, 1875, the plaintiff elected a trial by jury, and the action was continued. At the April term, 1876, after marking the case not for the jury, the plaintiff asked leave to become nonsuit, which was denied. The plaintiff gave as a…
1Opinion of the Court
FROM COOS CIRCUIT COURT. When an action has been referred to an auditor, and a report after a hearing has been made to the court, it is too late for the plaintiff to become nonsuit. This is put upon the ground that the statute makes the report conclusive unless it is impeached by evidence, and that a report against the plaintiff would not be conclusive if he could become nonsuit; or, in other words, that it would be an unjust construction to hold that the statute allows the plaintiff a privilege which is denied the defendant, — of destroying an adverse report by a nonsuit instead of evidence.…
2Cases cited1 opinion
- Fulford v. ConverseSupreme Court of New Hampshire · 1871
3Cited by2 opinions
- Harris v. ParkerSupreme Court of New Hampshire · 1890
- Rand v. Merchants' Despatch Transportation Co.Supreme Court of New Hampshire · 1880