Whether the plaintiff can become nonsuit after the report of an auditor is returned to court, was fully considered in the recent case of Fulford v. Converse: no reason has been suggested why the soundness of that decision should be questioned.
It is apparent the statute does not contemplate that the plaintiff shall become nonsuit while the action is pending before an auditor, for provision is made by which the auditor is to certify his non-appearance to the court, and the court will thereupon render judgment as upon nonsuit. This course would seem to be necessary to protect the defendant when he is entitled to recover upon his set-off, and for the taxation of his costs.
Exceptions sustained.