62 N.H. 231 | N.H. | 1882
The leading ground on which the defendants claim the privilege of a jury trial for the purpose of changing the auditor's report, is the right of trial by jury given by the constitution. Art. 20 of the Bill of Rights provides "that in all controversies concerning property, and in all suits between two or more persons, except in cases in which it has been heretofore otherwise used and practised, the parties have a right to trial by jury, and this method shall be held sacred." The exception in the provision shows that there were cases in which it had been "otherwise used and practised," and that the right, however protective, beneficent, and sacred it might be, was not extended to these. It was a preservation of a mode of judicial determination, in the form and manner as it was then "used and practised," and for a class of cases to which the method had been commonly applied. It was not an extension of the right to cases not before within its operation. It did not create or establish a right not before existing. It was a recognition of an existing right, guaranteeing it as it then stood and was practised, guarding it against repeal, infringement, or undue trammel by legislative action, but not extending it so as to include what had not before been within its benefits. Wooster v. Plymouth, 193, 203, ante.
Cases involving the investigation of accounts, particularly where the accounts are mutual or complicated, are within the equity jurisdiction of the court. 1 Sto. Eq. Jur., ss. 441, 442, 442 a, and notes. Although such cases are made the subjects of suits at law, in the trial equitable principles are applied, and equity jurisdiction is not lost. Wells v. Pierce,
It must be considered as settled in this state that cases within the equity jurisdiction of the court were, previous to and at the time of the adoption of the constitution, a class which it had not been the practice to try by jury, and to which the right guaranteed by the bill of rights was not extended and did not apply. There is not and never has been any absolute constitutional right of trial by jury for equity causes. Perkins v. Scott,
The decision of the precise point was made emphatic in Perkins v. Scott, supra. In Copp v. Henniker,
The defendants having no absolute right of jury trial under the constitution, it is not given by the statute which provides that "upon the report of an auditor, either party may elect to try the cause by the jury, and upon such trial the report may be given in evidence, subject to be impeached by either party." G. L., c. 231, s. 8. This trial is not the free and unfettered one known to those who adopted the constitution, nor the "method" by them held sacred. It is restricted by the weight of the auditor's report, and burdened by a prima facie case in favor of the party having the report, which is conclusive, and entitles the party having it to judgment, unless its weight is overcome by evidence on trial. Fulford v. Converse,
The absolute right of jury trial not existing in this case, under either the constitution or the statute, the cause could have been committed to a referee. Any suit at law or equity, or the determination of any question of fact pending in the court, wherein the parties were not, as matter of right, entitled to a trial by jury might be referred with or without the consent of the parties. Laws 1876, c. 35, s. 2. The fact that the cause was pending at the time of the passage of the act of 1876 did not prevent its application to the case. The defendants had no vested right in a jury trial, for no such right existed or was incident to the cause. The law imposes no new obligation, duty, or liability in respect to transactions then passed. It provides a remedy, rules of procedure, and a tribunal for the trial of the cause, and does not change *238
the ground of action or the nature of the defence. Section two provides for the reference, in general terms, of any cause pending in the supreme court; and section three excepts from the operation of the act cases before referred, and then pending before referees. The two sections, taken together, are equivalent to an express declaration of legislative intent that the act should apply to cases pending when it took effect, excepting those previously referred, of which this case is not one. This evidence of the purpose of the legislature makes it unnecessary to inquire whether, without such evidence, the act would be applicable to this case. Willard v. Harvey,
The defendants claim that the appointment of an auditor was an adjudication of a right to jury trial under the statute, and that objection to it afterwards could not prevail. The appointment of an auditor was a settlement of the question that the case required an investigation of accounts and vouchers, and was a proper one for an auditor. But the question of trying the case by a jury depended upon many facts and contingencies not necessarily, nor even probably, considered in determining the question of committing the case to an auditor. The right of jury trial not being absolute, and not being identified with or necessarily incidental to the appointment of an auditor, and the question of the right not having been considered, it could not be said that the appointment was an adjudication of the question of the right of jury trial. The consent of the plaintiff to a trial before an auditor was a consent that the case was a proper one to be sent to such a tribunal. The assent to the appointment of an auditor was not necessarily an assent to a right of jury trial not derived from such appointment. If the right of trial was the constitutional right, it was derived from the constitution and not from assent. If it was of the trial afforded by the statute, it could not come from an assent to a different right. The assent to the appointment of an auditor could not change a right before existing. In Deverson v. The Eastern Railroad,
It was found that the case was too complicated to be intelligently *239
understood by a jury, and for this reason the defendants were not entitled to any form of jury trial. Mere inconvenience is not a reason for refusing a jury trial in cases where the right is guaranteed by the constitution. Copp v. Henniker, supra, 206. When, as in this case, there is no right of trial under the constitution, and the fact exists, not of inconvenience, length of time, and increased expense of trial, but of the intrinsic impracticability of bringing the case to the intelligent comprehension of a jury, a trial would be a mockery of justice, and could not reasonably be insisted upon. It would not be claimed that a trial could be conducted in the presence of a musical concert or of a theatrical performance. The confusion arising from disturbing sounds and motions could be avoided by adjournment to another time and place. But a confusion arising from complications too intricate and difficult for the intelligence of jurymen to unfold cannot be controlled by time and place, nor avoided by postponement or change of location of the trial. It would not be claimed that a cause should be tried by jurors who could not speak nor understand the English language, however intelligent and impartial they might be. Lyles v. The State,
The case being in the law term on exceptions to the auditor's rulings upon questions of law, the defendants contend that the facts could not be proved upon which the questions now decided are raised. For many purposes, the law terms and trial terms of the court are sessions of a single tribunal. In any case of legal questions reserved or exceptions taken at the trial term, pending in the law term, questions of fact, of which there is no right of jury trial, may be submitted by order of the court to one of its members or a referee, or sent to the trial term, where they may be tried by the presiding justice or a referee. Whether they shall be tried by a justice or a referee at the law term, or by a justice or a referee at the trial term, is a question of convenience and expense, and not of law. No error appears in the course taken in this case.
Whether the case, after having been once heard by an auditor, whose rulings upon questions of law have been sustained, should be committed to a referee for another trial, depends upon the *240
principles which govern applications for new trials. Whether justice has been done, or injustice would be done, by denying the application, is a question of fact to be decided at the trial term. Brooks v. Howard,
Judgment on the report.
STANLEY, SMITH, and BLODGETT, JJ., did not sit: the others concurred.