The opinion of the court was delivered, by
Sharswood, J.— The only question presented on this record lies within a very narrow compass. Had the plaintiffs in error a legal right to the feigned issue which was awarded in the court below upon their petition ? If they had, it was manifest error in the court to direct that it should be stricken from the record.
The answer to this question is dependent upon another — whether the issue was awarded at the request of the parties interested, for the determination of a fact or facts material to the distribution of a fund arising from a sale by the sheriff under process issuing from the court ? It appears by the record that such a sale had been made under an alias fi. fa. with waiver of inquisition of the lands of George Jenkins and others, comprising the firm of Jenkins, Nish & Co. Under the Act of April 10th 1862, Pamph. L. 364, entitled “ An Act relative to the distribution of the proceeds of sheriff’s sales of real estate in the county of Allegheny,” the sheriff had returned a list of the liens appearing of record, to which, according to the provisions of the act, the fund would be distributed by the sheriff in the order of their priority, unless exceptions were filed. Exceptions were filed to the award of any1 part of the fund to three judgments and a mortgage appearing upon the list in favor of William H. Brown, by the plaintiffs in error, who were creditors by judgment posterior in date. They thereupon presented a petition with accompanying affidavits, averring that the defendants, Jenkins, Nish & Co., were not indebted to William H. Brown in the amounts of said judgments and mortgage, but that the said judgments were confessed and taken for a much larger sum than was really due, for the purpose of hindering, delaying and defrauding the petitioners and other creditors of the said defendants, and to prevent the property from being taken in execution and made liable for the payment of the just debts of the *408said defendants, and that the mortgage was given to secure the said judgments with the same fraudulent purpose.
By the Act of June 16th 1836, sect. 87, Pamph. L. 777, it is provided, that if any fact connected with the distribution of the proceeds of a sheriff’s sale shall be in dispute, the court shall at the request in writing of any person interested, direct an issue to í try the same; and by the Act of April 20th 1846, sect. 2, Pamph. L. 411, it is further provided, that before such an issue shall be directed in such case the applicant shall make affidavit that there are material facts in dispute, and shall set forth the nature and character thereof.
It has not been, and cannot be denied, that the plaintiffs in error complied with these provisions, and if so, they had a legal right to the issue for which they prayed, of which it was not in the power of the court below to deprive them, and their refusal of the prayer would have been reversible on error to this court: Bichel v. Rank, 5 Watts 140 Trimble’s Appeal, 6 Id. 133; Reigart’s Appeal, 7 W. & S. 267; Benson’s Appeal, 12 Wright 159.
It is alleged, however, that upon the trial of the issue, the court wras of the opinion that there was no evidence which ought to satisfy the jury that the facts stated in the petition were true, and that they had, therefore, the right to strike the issue from the record. But if such was the case, it was clearly the duty of the court on the trial to give a peremptory direction to the jury to find a verdict for the defendants, or to enter a compulsory non-suit, and then on a writ of error, bringing up by bill of exceptions the entire evidence, this court could decide whether the opinion of the court was right. Now, however, we have here no writ of error to any judgment on the issue; no bill of exceptions setting out the evidence. It is true that the testimony, which is said to have been given, is attached to the record, but it requires no argument to prove that it is no part thereof, and is therefore not judicially before us.
Nor has it been successfully maintained that it was competent for the court below under any chancery powers to take the course complained of. No doubt when a feigned issue is awarded to try some fact not arising upon the distribution of the proceeds of a sheriff’s sale, as it is a matter entirely in the discretion of the court to direct such an issue, it is equally in their discretion to rescind the order. But the issue awarded in this case under the Acts of Assembly was not an issue to inform the conscience of the court, but to decide the facts in dispute material to the distribution, by a trial by jury, which is the constitutional right of the suitor. This it was the object of the acts to secure, and therefore their language is imperative, and it is our duty to enforce their plain mandate.
Order reversed, and procedendo awarded.