
    Zalmon Booth against Azariah Tousey.
    Where three auditors have been appointed by the Court to audit the book accounts of parties, and report is made by two of them, the Court will admit parol testimony to shew that the parties agreed to proceed before the two reporting auditors in the absence of the third, and will accept their report.
    ACTION on book account,
    Judgment to account entered at the last term; and Enoch Woodbridge, Esquire, Argalus Harmon, and Belden Seymour, appointed auditors to examine and adjust the accounts between the parties, and report at this term.
    And now Enoch Woodbridge and Argalus Harmon reported, that they had been legally sworn, that they had notified the parties of the time and place of their sitting, who appeared before them and exhibited their accounts, which they had examined, and after hearing the evidence adduced, they found due to tire plaintiff 58 dols. 25 cts. being the balance of their book accounts.
    
      Josias Smith, for the defendant;
    moved to set aside this report, because one of the auditors, to wit, Belden Seymoury had not attended to examine the book accounts of the parties.
    
      Amos Marshy for the plaintiff,
    replied, that before the meeting of the auditors, the parties had agreed to proceed to the audit before the two attesting auditors, in the absence of the third.
    
      Amos Marsh, for plaintiff,
    
      Josias Smithy for defendant.
   Josias Smith.

The statute empowers the Court to appoint one or more judicious and disinterested men as auditors. After the Court have elected the number, and the rule has been made out and delivered to the party, the statute makes no provision for a part of them in any case to proceed to the audit.

But it is suggested, that the presence of one was dispensed with by the parties, who agreed to proceed before the remaining two. It is true, the maxim that consent will take away error ought to be carried to a liberal extent; but then this consent should be made properly to appear to the Court. The Court cannot know it from the mere suggestion of the party. It should in some mode be spread on the record, either by being entered on the rule over the signatures of the parties, or noticed by the sitting auditors in their report, and not proved by parol testimony. Report accepted.  