Parker, C. J.
The. statute of June 23, 1823, authorizing the appointment of auditors, provided that when any party to an action in which an auditor had been appointed should unreasonably refuse or neglect to appear at the time and place assigned, or after appearing should refuse or neglect to render an account, or produce such books, and to answer on oath such interrogatories, relating to the matter in controversy as may be pertinent and material, the auditors may certify such refusal or neglect to the court from which their appointment issued; and the same court may thereupon cause damages to be assessed by a jury, and enter up judgment for the damages so assessed with reasonable costs, or they may render judgment against the defendant as upon default or against the plaintiff as upon nonsuit. N. H. Laws (Ed. 1830) 378. The 6th-and 7th sections, chap. 189 of the Revised Statutes^provide generally, that if either party shall neglect or refuse to appear before .the auditor, or to render an account, or to produce such books and papers, and to answer on oath such interrogatories, relating to the matter in controversy as may be pertinent and material, the auditor shall certify the same to the court. The court shall thereupon render judgment against such party as upon nonsuit or default, and if necessary cause the damages to be assessed by the jury.
The omission of the term “ unreasonably ” in the Rev. Statutes, can not have been intended to change the rule. The legislature undoubtedly did not intend to visit such consequences upon a party who had reasonably neglected to appear. It must have been intended only as an abridgment of the language, and we are of opinion that the neglect must be one upon reasonable notice for that purpose ; otherwise it would be necessary in all cases audited for the party to attend in person. We are of opinion also that there may be circumstances in which it would be proper to decline requiring the attendance of the party subject to the revision of the court. If the rule were otherwise, we must inquire in all cases into the situation of the parties before the appointment of an auditor, for in all those where it was impracticable for the party to attend, the mere fact of the appointment of the auditor would in effect decide the case.
- Motion for nonsuit denied.