Opinion
Decided June, 1893.
In an action of assumpsit which involves matters of account too numerous and complicated to be intelligently investigated and adjusted by a jury, the parties have no constitutional right to a jury trial. The propriety of a reference on this ground is a question of fact for the trial term.
ASSUMPSIT, on a contract for the building of a church. The plaintiffs' specification contained seven items, of which one was for a balance of $1,761.15 due on the contract. The plea was the general issue, with a brief statement alleging part payment, and specifying twenty-five items of recoupment, amounting to $1,174. The court referred the action, and the plaintiff excepted.
Smith Sloane, for the plaintiffs.
Bingham, Mitchell Batchellor, for the defendants.
The specifications show that several matters of account are included in the action. If they are so numerous and complicated that they cannot be intelligently investigated and adjusted in a jury trial, the parties are not entitled to such a trial, and the case may be referred without their consent. Sargent v. Putnam, 58 N.H. 182; Davis v. Dyer, 62 N.H. 231. Whether they are so is a question of fact that was decided in the affirmative at the trial term. The order of reference necessarily involved a decision of this question. It is not subject to review here. Dole v. Pike, 64 N.H. 22.
Case discharged.
CARPENTER, J., did not sit: the others concurred.