Nath. H. Couch v. Oliver Davis, 1 Smith (N. H.) 136

At the last Term there was a report of referees [in favor of the plaintiff]. This report was recommitted [at the request of the defendant]. On the recommitment, one of the referees refused to hear the parties again. The other two notified the parties. Defendant did not attend. Those two reported, at this Term, a confirmation of former report and additional costs. Judgment was rendered at this Term on the first report, and costs of last hearing were taxed. It is understood by the Court that the referee did not sit by desire of defendant, who wished to destroy the rule altogether.

Similar judgments have been frequently given during the last ten years, , The first report was not set aside. A new trial is sometimes granted without setting aside former verdict (where special case reserved). LofEt, 451. [The above note is appended to the abstract of this decision in the Manuscript Digest.] Sustained by May v. Haven, 1812, 9 Mass. 325; Peterson v. Loring, 1820, 1 Greenl. 64. If, upon recommitment, one of the referees refuse to act, and the other two make a report differing from the first report, judgment cannot be rendered on the second report. Short v.

Pratt, 1810, 6 Mass. 496 (as explained in reporter’s note, 1 Greenl. 67); Cumberland v. North Yarmouth, 1827, 4 Greenl. 459.