
    Trimble’s Appeal.
    When an inquiry respecting the proceeds of a sheriff’s sale, brought into court for appropriation, involves matters of fact, a party is entitled to an issue to- try those facts, although his application for it be not made until all the evidence has been heard, and the case argued.
    APPEAL from the decree of the court of common pleas of Cumberland county, appropriating the proceeds of the sale of the real estate of Joseph Smith.
    In the court below, upon the hearing of this case, all the evidence had been given to the court, and the counsel on each side had concluded their argument, and the court was about to deliver their opinion, when the counsel of Thomas Trimble demanded an issue to try the facts, about which the evidence had been given. The court was of opinion that the application came too late, and refused it, which was assigned for error.
    Alexander, for the appellant.
    
      Watts, for the appellee.
   Per Curiam.

Trial by jury is a constitutional right which cannot be waived by implication. The inquiry involved facts which were peculiarly proper for a jury, and of -which the party may not have been fully apprised, till the case had been fully developed by the evidence. It could not sooner be known that the facts are disputed. His application for an issue, therefore, was not precluded by any prior election.

Decree reversed and cause remitted, with direction to arvard an issue.  