The case of Pollard v. Moore, 51 N.H. 188, in which a motion to become nonsuit upon the coming in of the report of commissioners, under the flowage act, was *Page 219 denied, is very analogous to the first of these cases, and may be cited in addition to the case of Fulford v. Converse, cited by my brother Ladd.
In regard to the second case, it seems that the report, though recommitted, had not been rejected, and the defendant, it appears to me, would have the same right to the benefit of it as in the other case. If the plaintiffs did not, with or without further hearing, cause the report to be changed, it would be the duty of the auditor to return it again to the court, and I do not see why the defendant would not have a right to the benefit of it, either as evidence to the jury if the plaintiff should elect such trial, or as the foundation of a judgment if he did not.