188 F. 759 | U.S. Circuit Court for the District of Eastern Michigan | 1911
(sitting by designation). At the last term of this court, when I found this case upon the calendar, I thought it unsuitable for trial at length before a jury, and I urged upon counsel the advisability, if not the necessity, of some arrangement that should put the issues in shape where they could be tried and disposed of intelligently. To this end, I suggested either a general reference by a consent or the appointment of an auditor under the state statute. As the case stood for jury trial, the latter course also could he taken only by consent.
After several months, the case now comes up for trial and is regularly reached. Counsel and parties have accomplished nothing along the suggested line, so that the situation is controlled by the record as it stands, and without any opportunity to rely upon the voluntary cooperation of all parties in removing difficulties.
The suit is for an account and on an account. It covers and involves reviewing the conduct of the clerk’s office for 27 years, and the
Counsel all agree that the trial will occupy as much as four weeks. With the indicated tendency to contest every item, it is more likely to take four months; and this would allow only fifteen minutes to each balance item, that is, to each independent issue.
Under these circumstances, should I impanel a jury and propeed with the trial? I think not. The case is the typical, the ideal,.one for a master in chancery, and it is so unsuitable, indeed, so unfit, to be tried by jury, that such a trial, unless the issues were simplied, would be a mere farce. I think all the proceedings herein should be stayed pending a resort to equity by some .one or more of the parties. If no one of them should do so, that would raise another question; but the propriety of a proceeding in equity seems to me so obvious that I anticipate no such reluctance. ■ • ■
Whether the jurisdiction in equity depends on (1) the right to bring a formal “action of account,” or (2) the existence of mutual debits and credits, or (3) the practical inadequacy of the legal remedy-,'in either case, it-is clear. • •
1. The case seems in all respects suitable for the common-law action of “account render,” “where a man is charged as bailiff whereby the certainty of his receipt appears not till account” (Bouvier); defendant would plead “plene computavit,” and the plaintiff, if successful, would get a judgment- “quod computet.” . . .- >
2. Under the law, defendant has rendered formal accounts at stated periods. Accounting, then and- now, is the essence of the whole situar tion. Defendant is entitled to credit in each case for his lawful fees; and then to credit .on the final balance for certain errors and excessive remittances, if any;- in other words, each of the balance items!, and then tjie final balance, depends upon mutual debits and credits. ■ ->
3. It is impossible to believe that a trial by jury is adequate to determine the issues accurately and truly: It is true a suit at law and a judgment at law are'adequate remedies to recover any specific suim which the defendant, as former clerk, owes; but to apply the phrasé “adequate remedy” to such proceedings, under the circumstances of this case, seems to me an abuse of words. There have been various decisions bearing upon the question, but none of them which are adverse to the right of'equitable procedure are, so far as I have observed, under,circumstances nearly as extreme as those of this, cas.e.
