The opinion of the Court was delivered by
Rogers, J.In Bishell v. Rank, (5 Watts 140), it is held, that in the appropriation by the Court of Common Pleas of money made by the sale of real estate, the party in interest is entitled to an issue to try the facts, and that it is error to refuse it. The mandate to try an issue, when facts are in contest, is peremptory, as the suitor’s constitutional right of trial by jury cannof be infringed. And in Trimble’s Appeal, (6 Watts 133), where an inquiry respecting the proceeds of a sheriff’s sale, brought into court for appropriation, involved matter of fact, it was ruled that the party is entitled to an issue to try these facts, although the application was not made until all the evidence has been heard and the case argued. The cases cited, and particularly the latter, is decisive of the present. The application of Mr Reigart was made after the case was argued, but before it was decided. It is founded on two grounds that the judgments were given in contemplation of bankruptcy, and for the purpose of giving the York Bank a preference over the general creditors; and again, because before the confession of the judgment Slaymaker had committed acts of bankruptcy. Both propositions involve the investigation of facts, which the appellant had a right to submit to the decision of a jury; and of this constitutional right the court cannot deprive him.
Decree reversed, with direction to award an issue.