Majority
Headnote
In an equitable action to set aside a conveyance on the ground of fraud, the court may order the issues, or any specific question involved therein, to be tried by a. jury. {Code, § 254.) But this will not be done, even on application of one of the parties, where the circuit calendar is crowded with business. tinder such circumstances, -a reference is proper.This is, in effect, a chancery suit. The leading object of the complaint is to set aside a conveyance on the alleged ground of fraud. The plaintiff, however, asks that the case may be tried by a jury, and that issues for that purpose may be framed pursuant to the 254th section of the Code; which provides that, although such cases are triable by the court, yet the court may order them, or any specific question involved in them, to be tried by a jury, or by referees.
Considering the great accumulation of business on the circuit calendar, and the great delays consequent thereon, I do not deem it a discreet exercise of the power confided by the Code to aggravate the existing evil. 1 shall therefore direct that the whole issue be referred to Aaron Vanderpoel, as referee, with liberty, -nevertheless, to the parties, by mutual consent, to insert any other name they may deem proper.