In an action committed by order of court, under the referee law of 1874, to a referee, upon whose report the plaintiff has elected a jury trial, the plaintiff, if the report cannot be used as evidence to the jury, may, at any time before the commencement of the trial, become nonsuit.
ALLEN, J.
Ordinarily the plaintiff may, as a matter of right, become nonsuit at any time before his case is opened to the jury (Judge of Probate v. Abbot, 13 N.H. 21); and no reason appears why, in the last two cases, which were not referred, the motion for a nonsuit should not be allowed. The right to become nonsuit has been denied in cases upon which all auditor or referee has reported, upon the ground that it would be unequal and unjust to permit the plaintiff the privilege of overcoming an adverse report by a nonsuit, instead of by evidence upon a trial. Fulford v. Converse, 54 N.H. 543; Haskell v. Whitney, 12 Mass. 47. If the referee's report in the first two cases would be evidence on the trial, the plaintiffs could not, as matter of right, destroy the legal advantage which the defendant had of a report conclusive, unless overcome by evidence. The doctrine of King v. Hopkins, 57 N.H. 334, and Copp v. Henniker, 55 N.H. 179, may be applied in the disposition of these cases. It is not, however, intended to affirm or disaffirm the correctness of the decisions in those cases, nor is it to be understood that the decision of the cases here is to be regarded as a precedent for deciding any future case. The plaintiffs may become nonsuit.
Motion granted.
STANLEY and SMITH, JJ., did not sit: the others concurred.