Opinion
MARCH TERM, 1851.
By section 21 of "An act prescribing the manner of proceedings in Courts," the court is not authorized to refer an action upon book account to an auditor, unless there are partnership or joint accounts, or matters of book account which are mutual and so complicated as to require the skill of an accountant in order to state the accounts.
THIS was assumpsit on book account for $554, for professional services as an attorney. It consisted of a large number of items, for drawing a bill in equity and amendments to the same, for motions in court, consultations, taking depositions, preparing briefs, making abstracts of the bill and answer and evidence,c., and for services in other cases. The defendant was credited in the account with fifty dollars.
At the trial of the cause, Carpenter and Knowles, for the plaintiff, moved its reference to an auditor, and stated that it was an account of so complex a character that an auditor was the proper person to examine it, and that it, moreover, involved a question of professional skill which the jury could not be so well qualified to judge of as an auditor that might be selected by the court.
Potter, contra.
But the court were of opinion that the language of the statute did not authorize them to refer it; that the statute only contemplated joint accounts, or accounts between partners, or matters of book account between the two parties to a suit, which were of so intricate and complex a character, as to require the skill of an accountant in order to state the accounts. The fact that the case involved a question of professional skill was no reason for taking it from the jury, otherwise parties might be deprived of trial by jury in every such case, where the value of the services charged depend upon the skill of the plaintiff in his particular calling, and auditors, instead of a jury, would be the tribunal to try cases of book account of this description.
It was not the peculiar character of the services charged in the account, but the complex character of the accounts themselves, requiring the skill of an accountant to state them, which authorized a reference to an auditor.