
    Benjamin B. Dyer vs. Edward C. Morris et al.
    
    Cumberland.
    Deceived November 11, 1878.
    
      Trial. Practice. Auditor. Set-off. Nonsuit.
    
    The defendant filed his account in set-off. The case was sent to an auditor, who heard the parties and made report to “the court. Held, that the plaintiff could not then discontinue his suit without the consent of the defendant. R. S., c. 82, § 59. Judgment was properly rendered on the auditors report.
    On exceptions from the superior court.
    Assumpsit on account annexed, to recover $160.48, balance due on account. At the return term defendants filed an account in set-off amounting to $5,689.29, and the further claim for $500 as interest thereon. The case was sent to W. L. Putnam, as auditor, who, after hearing the parties, stated the accounts and made report to the court, finding the amount due from defendants to plaintiff to be $1,211.25, and the amount due from plaintiff to defendants to be $1,310. At the March term the case was assigned for trial before the court without the intervention of a jury, and called for hearing. The plaintiff appeared by counsel and declined to prosecute his suit, offering to become nonsuit, to which defendants objected. The court ruled, as matter of law, that at that stage of the case the plaintiff could not become nonsuit against the objection of the defendants. The plaintiff then again declined to proceed to trial, and the court received in evidence the auditor’s report offered by defendants, which was all the testimony offered, and thereupon rendered judgment against the plaintiff in the sum of $98.75, as per statement of accounts in auditor’s report.
    The plaintiff alleged exceptions.
    
      J. Howard, FT. Gleaves <& H. B. Cleaves, for the plaintiff.
    
      M. P. Frank, for the defendants.
   Per curiam.

Held, as in the head-note stated.  