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.