The plaintiff is entitled to judgment, in pursuance of the auditor's report, by the express terms of sect. 10, ch. 188, of the Revised Statutes. The statute contemplates the trial of cases involving accounts as more appropriate to an auditor than to a jury; and substitutes the report of the former for the verdict of the latter, as the basis of a judgment. The case of Campbell v.Crout, 3 R.I. Rep. 60, turned upon the effect of an appeal to this court from a judgment of the court of common pleas founded upon such a report; the statute granting, as the court held, an appeal in such cases, as well as others, and providing, that upon such appeal, "both parties may have the benefit of any new and further evidence. So far from holding in that case, that upon the allowance of the auditor's report the case must go to a jury, the language of the court is express, "that upon its reception, judgment shall be rendered for the amount reported. The same thing would be done upon a verdict, when accepted, and there isnothing to show that this was not to stand upon the samefooting." Ib. 62.
The consideration, that in a case originally commenced in this court, if it be sent to an auditor, the parties will be deprived of a new trial as a matter of right — since this is given only in case of a verdict — is certainly one which should weigh with the court upon a motion for an auditor. It cannot, however, countervail the express words of the statute directing us what to do upon the allowance of an auditor's report. In the case at bar, certainly, the defendant has no right to complain that the case was sent to an auditor, whatever the effect may *Page 340 be; since, although the minute upon the docket is silent upon it, it is asserted, and not denied by his counsel, that this course was taken upon his motion.
Let judgment be entered up for the amount of the notes declared on, with interest; such a judgment being, considering the cause of action, in "pursuance" of the auditor's report.