The case does not show whether the action could or could not have been conveniently tried by a jury or in court; and this, as I read the act of 1874, was an important element in determining the exercise of the large discretion conferred upon the court by that act in the matter of sending causes to referees for trial. But, as any doubt *Page 559 on this point has been removed by the legislature, — act of 1875, ch. 35, — the question need not be considered now. I agree that the order should be rescinded.
SMITH, J. I am of the same opinion. The act of 1874 having been materially changed, the question at the next term of the circuit court will be, whether this case shall be recommitted to the referee; and that must be determined by the provisions of the act of 1875.
Case discharged.