The opinion of the court was delivered by
Woodward, J.In affirming the opinion and decree of the court, we mean to be understood as deciding, that, to obtain an issue under the Acts of Assembly, relative to the distribution of the proceeds of sheriffs’ sales, it’ is not enough for a creditor to swear that the judgment, which is in his way, was confessed by *84collusion between the parties thereto, and for the purpose of hindering and delaying- certain other creditors; but he must set forth, in his affidavit, that there are material facts in dispute, and also the nature and character of such facts.
Even under the Act of 1836, such an affidavit as we have upon record would have been insufficient: Dickerson’s Appeal, 7 Barr 258, and the cases therein cited. Much more is it insufficient under the Act of 20th April 1846, which, instead of granting the creditors an issue as matter of right, restricts it to the terms and conditions I have stated.
The vice of this affidavit is, that it does not set forth the nature and character of the facts in dispute. It alleges collusion and fraud, but these are legal conclusions from facts for the court and jury to draw, not for the creditor. He may, perhaps, hold that a debtor in failing circumstances, who confesses a judgment to a particular creditor, in exclusion of others, has been.guilty of collusion and fraud, though the debt confessed be honest and bond fide, whilst a court might possibly think that such facts did not constitute collusion or fraud.
If he may diave an issue upon alleging his conclusions, instead of the facts whereon his conclusions rest, the statute is diverted from its purpose, and we shall have feigned issues to try legal conclusions, and abstract reasonings instead of facts.
Perhaps, there were no facts in dispute in this case. How can we know, until facts are alleged? The plaintiffs thought the defendants’ judgment was collusively and fraudulently confessed; but the grounds on which they thought so, had they been disclosed, would not, perhaps, have been disputed'. Collusion and fraud are, indeed, facts when established, but they are not established by the suspicions of parties, but by the judgment of law, passing upon evidence which leads, necessarily, to these conclusions.
Without, more, the decree is affirmed.