' The opinion of the court was delivered by
Black, 0. J.This case is in all respects, except one, similar to Brandt’s Appeal, in which judgment has been already given. It is alleged that the judgment of Hellen & West, two of the appellees, was paid, and the appellant asked for an issue to try the question.
The Act of Assembly makes it the duty of the Court to direct an issue, on the request in writing of any person interested, for the trial of any fact in dispute. The issue here was demanded to try whether the judgment of Hellen & West was paid off. Now this could not fairly be considered a fact in dispute between the parties. The evidence attached to the auditor’s report shows that the defendant did not assert before him that the judgment was paid off, but only that he was entitled to a credit upon it for a book account, not against the firm but against one of the partners, and that was rebutted by a counter claim just as well supported.
A fact is properly said to be in dispute when it is alleged by one party and denied by the other, and by both with some show of reason. A mere naked allegation, without evidence, or against the evidence, cannot create a dispute within the meaning of the law. If it could, a party might stop the distribution whenever he chooses to mal?e a groundless assertion. The Court was right in refusing the issue.
Decree affirmed.