The opinion
By the Court,
Hastings, Ch. J.
By the record it appears that the plaintiff sued the defendant for balance of an account for work and labor done as a mechanic. The balance not being disputed, the defendant, by his plea, set up payment by a promissory note due plaintiff at four months after date, to which the plaintiff replied fraud in the execution of the note, and rendered the same to be cancelled on the trial, and insisted on judgment *337 for the balance of the original indebtedness. The court, without the written consent of the parties, and against the verbal consent of the plaintiff, referred the issue to a single referee. The 136th sec. chap. 10 of the Practice Act, provides that whenever there shall be an issue of fact, it must be tried by a jury, unless a jury be -waived. The 136th sec. of the same act, {chap. 13,) among other things provides, that such an issue, if tried by referees, must be referred upon the written consent of the parties. It is evident that there was not an issue in which the court could, upon its own motion, direct a reference, as it does not appear to present either one of the three cases specified in the 164th section of same act, in which the court is authorised to order a reference to either one or more referees, -without the consent of the parties. The judgment therefore of the district court will be reversed, and cause remanded for further proceedings.
Ordered accordingly.