Crousillat v. M'Call
5 Binn. 433
Pa.
1813
Check Treatment
Tilghman C. J.

After stating the case and exceptions, delivered his opinion as follows.

1 The first is the principal objection on which the plaintiff relies. The action of account render has not been-frequent in our courts; and where it has been used, it has often been conducted by consent, in a manner which was convenient to both parties. It has either been agreed that the jury should find a verdict for plaintiff or defendant, as in common actions, or that the auditors should make a report as referees. In the case of Moore v. Hunter, 3 Binn. 475, the Court were led to an investigation of the true mode of *438proceeding; and. although for particular reasons, exceptions to rePort °f the auditors were permitted to be filed and acted upon in that case, yet it was expressly mentioned, that in- future, it was expected that the proceedings should be conducted, “ according to the principles and practice to be rt found in the books.” The Court did not then decide what those principles were; yet there was a, pretty plain intimation of their opinion on that subject. It has now been fully and well argued; and from the cases cited it plainly appears, that if the matters offered by the defendant in discharge of the plaintiff’s demands, are disputed by the plaintiff, he may cither demur or take issue before the auditors. If there are more points of dispute than one, there may be a demurrer or an issue on each, which are to be certified by the auditors to the Court, and then the matters of law will be decided by the Court, and the issues in fact by a jury, after which the account will be finally settled by the auditors according to the result of the trials.' It is said on the part of the plaintiff, that these proceedings are tedious, expensive and inconvenient, and that the Court ought to embrace the present opportunity of modelling this action so as to render it more useful. That the proceedings are tedious and inconvenient is certain, and for that reason, the action has for a long time been very little used in England, where the Court of Chancery affords a more complete remedy. But it does not follow from the inconvenience of the thing, that we have a right to make innovations. Where the-forms of an action are well ascertained, we have no right to alter them even in our own Court, much less have we a right to compel the Court of Common Pleas to alter them. It does not appear for what reasons the exceptions were dismissed. It is said, and I suppose truly, that it was because the Court of Common Pleas were of opinion that the matters contained in them ought to have been pleaded before the auditors. For any thing that appears on the face of the record, we cannot presume that there was any matter in dispute before the auditors, because they have made no mention of any such matter. With no propriety therefore can we say that the Court below were wrong in rejecting the exceptions. The plaintiff’s counsel have urged that if either party has cause of complaint against the auditors, there is no mode of redress but by complaint to the Court. This is very *439true; and when there is cause of complaint, the Court are bound to give redress. If either party desires to join an issue, and the auditors refuse permission, the Court will set the matter to rights. So if the auditors conduct themselves with any manner of impropriety to the injury of either party, redress may be had on application to the Court.

2. The second objection is contradicted by the record. The judgment which was first entered, was struck out, and the report confirmed. Whether judgment could have been lawfully entered for the balance reported in favour of the defendant', or whether the defendant may by virtue of our act of assembly, hereafter sue out a scire facias against the plaintiff, for the balance so reported, are matters not now in question. All that the Court of Common Pleas did was to confirm the report.

3. The third exception was given up in the course of the argument. Indeed if an oath were even necessary, it does not appear that it was not administered. No complaint of this kind was made in the court below.

4. There is nothing in the fourth exception. The auditors did state an account which they returned along with their report.

5. The fifth exception is not founded in fact. It does not appear that any issue was joined, or even tendered before the auditors.

My opinion on the whole, is, that the judgment should he affirmed.

Yeates J. Gave no opinion, having been unwell during the argument, and unable to attend. Brackenridge J.

I have always felt a strong disposition to get_oxeujjl£ application of a rule of practice, or to change the rule, when it is in the way of the attainment of justice in a particular case. But the application is one thing, and the change_of the ruffi. is another. In Moore and Hunter, the question was the application of the rule. It was not applied there, owing to the case of Holland and Macltie having led to a misunderstanding of the rule. The like misunderstanding is said to exist in this case; the counsel declaring themselves not to have been apprized of what had been laid down as the rule in Moore v. Hunter. But there is an essential difference *440between dispensing with the application of our own rule in a ' case originating in this Court, and that of a case brought up by at writ of error, where the judgment has been precisely what we then said it ought to be. It has been rendered abundantly clear, that in an action of account render, the matters in controversy cannot be taken in bulk; but there must be a simplification, and the fact separated from the law by demurrer or joining issue. By the analogy of our Pennsylvania practice, this need not be by form at length, but in brief, as ore tenns in England was originally the case, before special pleadings came in use. This removes one objection at least to the expense of this mode of proceeding, in the action of account render with us. I have been thinking of taking up the question of practice in this action, on the ground of what it ought to be, if it were for the first time to receive a consideration; or rather what it ought to be if in a legislative capacity, we were to say, what in future it ought to be. The alternative of this practice would be, unless original chancery jurisdiction was given, that as in the case of other auditors, the Court should' have a superintendance and approve. This would lead to all the uncertainty and vexation, and guessing in the dark, which attends the examination of reports of referees.

But were a Court in the last resort, which has the power to change a rule of practice, disposed to do it, there is an impediment in the way here. It is taking away the trial by jury from the action of account render, so far as respects the issues in fact, which has been questioned to a certain extent, as not being within the power of the legislature itself. The possible injustice done in this particular case, is all that remains to pass upon now, and that does not appear. It can only be said, that it might have appeared, if it could have been examined by the Court below. The presumption is, that no injustice was done, especially by such intelligent auditors as are said to have passed upon the accounts mutually exhibited with vouchers and explanations. No misbehaviour of parties or auditors, such as would affect the verdict of a jury, was alleged or put upon the record of the Court below, but suggestions of mistake, &c. offered only. Even if there had been error, I do not see how it could be relieved in this stage of the proceeding. Better a particular mischief, than a general inconvenience.

Judgment affirmed.