Ward v. Hill , 70 Mass. 593 ( 1855 )

Shaw, C. J.

We suppose it well established as a rule of chancery that, on a hearing, an issue to try a matter of fact will be ordered or not, according to the sound judicial discretion of the court.

By the statute under which this suit is brought, an option is given to the plaintiff to proceed by bill in equity, or by action at law. Rev. Sts. c. 35, § 3. We think that when he elects to proceed by bill in equity, he has the full benefit of that remedy, with all its incidents; and that an election to proceed by bill in equity is no waiver of his right to ask for a trial by jury, where in other respects he would be entitled to it. It remained therefore for the judge, at the hearing, to decide on the motion of the plaintiff for an issue, and such interlocutory order is not open to exception.

Exceptions overruled-