The opinion of the court was delivered by
Mr. Justice Pore.It seems that this action, which was on the equity side of the Court of Common Pleas, had been placed on its appropriate calendar, No. 2. The defendant having in *265his answer raised questions of fact, and desiring an issue framed to try the same, gave a notice in writing that he would move the court on the first day of its session to frame such issues of fact for trial by jury. Neither counsel for plaintiff nor defendant happened to be present in court when his honor, Judge Norton, called for issues, as required by the act of 1890 (20 Stat., 695); but subsequently, and before the juries for the term had been discharged, the counsel for defendant called up his motion. The order was objected to, because not in time, under the act of 1890, supra. The Circuit Judge, as a chancellor, when the cause was reached on the call of Calendar No. 2, passed an order reciting that defendant was not entitled to his order under the above act, but held and announced that questions of fraud in an equitable action are peculiarly appropriate to a jury trial for the enlightenment of the court, and settled these issues for trial before a jury. The plaintiff, conceiving that the act of 1890 was exhaustive as to the mode by which trial by jury of issues of fact in an equitable action may be had, appealed from such order of the Circuit Judge, and his six grounds of appeal present this question in its several phases.
1 The defendant assails the appellant’s right of appeal. Clearly r.he appellant has no right of appeal at this time, unless the order in question involves the merits, or, if unreversed, will lead to a denial by the court of some substantial legal right of the appellant here. This would be the case if this court should hold that the act of 1890, supra, deprived a chancellor of the power of submitting issues to a jury whenever, in his judgment, such a course was necessary to the enlightenment of the conscience of the court. For this court to adopt such a view of the effect of the act in question would work a radical change in the machinery of the Court of Equity as it has existed here from time immemorial. We cannot view this act of 1890 as intended for such a purpose, or as working-out such a result. If we did, we would not hesitate to declare it unconstitutional, as subversive of the provisions of the Constitution relating to courts of common pleas and this court in equitable actions. This last course is not necessary, in the view of this court. Hence we think the Circuit Judge, sitting *266as a chancellor, had a perfect right, in his discretion, as such, to order out these issues for a trial by jury; and his order, therefore, did not involve the. merits, nor did it amount to a practical denial of a substantial legal right of the appellant. The order was not appealable.
It is the judgment of this court, that the order of the Circuit Court now appealed from be affirmed, and that the action be remanded to the Circuit Court, for a trial by jury of the issues framed by the order of Judge Norton, and thereafter for a hearing of the action by the Circuit Court as in chancery, untrammeled by the provisions of the act of 1890, as found in 20 Stab., 695.
Mr. Justice Gary concurred in the result.