Rasau v. the Atlantic Refining Co.

In the first count of the complaint, the plaintiff does not affirm the lease and ask for damages for the fraud. If she had that would have started a cause of action at law. On the contrary, she seeks to have the lease set aside on the ground of fraud. That is a cause of action in equity. The fact that she also asks damages for injuries suffered incidentally does not make the cause of action one at law. If damages are awarded on the first count it will be pursuant to the equitable power of the Court. They will be awarded not because the action is one in law but on the equitable ground that a court of equity will do full equity. The second count clearly purports to state a cause of action in equity and not at law.

The cause of action set up by both counts being equitable, the present motion is addressed to the discretion of the Court. It does not appear that there is anything peculiar to the case which indicates the advisability of any departure from the ordinary course. A judge is as well able to pass upon the questions of fact involved as a jury would be and there is no apparent reason why the judge should summon to his aid a jury to determine those issues.

The application that the Court order issues of fact tried by a jury is denied.