The right to a trial by jury in civil causes “except in cases in which it has been heretofore otherwise used and practiced . . . shall be held sacred.” N. H. Const. Part I, Art, 20th. While there was some conflict in the earlier cases, it became settled law in Daley v. Kennett, 75 N. H. 536, 539, that the complexity of a case alone was not sufficient reason for rеfusing the jury trial guaranteed by the Constitution: “At common law and in ordinary actions, the right to a jury trial was absolute. In equity thеre was jurisdiction in matters of accounts if it appeared that the case could not be intelligently triеd by jury. But there was no such equitable jurisdiction in actions sounding in tort, where the sole complaint was that the defеndant had converted chattels, and damages alone were asked as a remedy.” In the present case the detailed specifications indicate that an accounting in equity is neither sought nor necessary. The tort of the alleged conversion is waived and the common law action of assumpsit seeking dаmages alone is substituted. The result is the same whether the action is trover or assumpsit. The procedural tag used is not determinative. “The nature of the case and of the relief sought must be looked to for the settlement of the constitutional question.” Daley v. Kennett, supra, 540. The reasoning of this case was reaffirmed in Douglas v. Company, 81 N. H. 371, 374. See also, Cavanaugh v. Barnard, 83 N. H. 370, 373.
If this were in effect a suit for accounting, whether instituted by an action of аssumpsit (Sargent v. Putnam, 58 N. H. 182) or a bill in equity (Berry v. Whidden, 62 N. H. 473, 476), it could be committed to an auditor (R. L., c. 395, s. 1) or a referee without the consent of the parties bеcause they “are not, as matter of right, entitled to a trial by jury.” R. L., c. 395, s. 9; Low v. Society, 67 N. H. 488. However it appears from the nature of this case and the relief sought that *277 accounting and discovery is not required to determine the extent of the damages claimed. This proceeding is one triable by jury at common law when our Constitution was adopted and Art. 20th preserves that right today. It does not involve a common law accounting or a controvеrted equity so as to bring it within the exception in Art. 20th “in cases in which it has been heretofore otherwise used and рracticed.” The present case may be contrasted with Dondero v. Ferranti, 90 N. H. 554, where the court allowed the amendmеnt of “a common-law action of tort for embezzling funds and securities . . . [to] a bill in equity for an accounting.” It was held to be proper even though one party lost the right of a jury trial of the action at law. The rule thus operates both ways.
The ruling of the Trial Court that the plaintiff is entitled to a jury trial was correct. But logically and as a matter of common sense it should not necessarily follow that a complicated and involved сase must be submitted to a jury in a manner which it could not clearly understand and comprehend. This was ably demonstrаted by Mr. Justice
Brandeis
in
Ex parte Peterson,
A similiar procedure of reference to an auditor prior to a jury trial exists in this state (R. L., c. 395, ss. 1, 7, 8) but it is limited to accounts and accounting in which there is no constitutional right to trial by jury. It has been considered constitutional in early cases on this limited basis. Doyle v. Doyle, 56 N. H. 567; Perkins v. Scott, 57 N. H. 55. Since this is nоt properly an action for accounting, but one *278 sounding in tort, the auditor statute cases have no аpplication. Since there is a constitutional right to jury trial, the referee .statue (R. L., c. 395, s. 9) likewise is inapplicable.
Whether our auditor stаtute should be broadened to include preliminary reference, in the discretion of the Trial Court, of all complicated and intricate matters not clearly comprehensible to a jury, involves questions of policy. It is not improbable that the bar would have taken some action, if deemed desirable, through the judicial council (R. L.,
c.
381-A, s. 3 (d) or the Legislature were it not for the divided opinion in
King
v.
Hopkins,
57 N. H. 334, decided in 1876. The majority view in that case has been subsequently considered labored and erroneous (4 Wig. Ev., 3d
ed.,
s. 1356,
p.
730), and has been questioned in the jurisdiction from which the reference statute was substantially copied.
Holmes
v.
Hunt,
While the present case may not be affected by future changes in reference procedures or by their absence, the stated evil of submitting complicated matters to a jury which they may not clearly comprehend can be avoided if counsel utilize the full benefits of pre-trial procedure. Superior Court Rule 48 (a) (1), (5) 93 N. H. appendix; Krook v. Blomberg, ante, 170.
Exception overruled.