Woods, J.
This action, which was entered at the August term 1842, must of course have been commenced subsequently to the 30th of dune 1841, when an act was passed, of which the 28th section of the 108th chapter of tlie Revised Statutes contains some of the provisions. By the 7th section of the act first named, it is provided that “ upon disclosure made by any person summoned as trustee, the creditor may move the court that the question whether such person is trustee or not, be tried by the jury; and upon the payment of the trustee’s costs up to the time of filing such motion, an order shall be made and an issue framed, for that purpose,” &c. The words of the Revised Statutes referred to are nearly the same, and no room is afforded for any such question as the case presents.
The objection was erroneously sustained by the court below, and the plaintiff being entitled to a trial of the issue by the jury upon his motion, and upon compliance with the terms prescribed by the statute, it must be ordered accordingly.
Trial by jury ordered.