Opinion bt
Mr. J ustice Green :We do not know upon what ground the application for an issue was refused in this case, as no opinion was filed by the court below and no paper book has been furnished us by the appellees. As it seems to us the facts set forth in the written application of’ the appellants, for issues in the several judgments mentioned, are quite sufficient, not merely to justify but to require the learned court below to grant the issues prayed for. The language of the act of 1836 upon this subject is peremptory: “If any fact connected with such distribution shall be in dispute, the court shall, at the request in writing of any person interested, direct an issue-to try the same.”
The act of April 20, 1846 (Purdon’s Digest, 764, pi. 113),, directs that “the applicant for such issue shall make affidavit that there are material facts in dispute therein, and shall set forth the nature and character thereof, upon which affidavit the.court shall determine whether such issue shall be granted.”
*83The determination of the court must be based upon the facts set out in the affidavit, and this makes it necessary only to consider the character of the facts there set forth. Upon examining the affidavit in this case we find that it is alleged therein that as to $1,100 of the judgment in'favor of Mullen the money was loaned by Mullen to Emeline Nichols, wife of William Nichols, and that there Avere no transactions betAveen Mullen and William Nichols; that Mullen had stated that he had no interest in the judgment, other than the $1,100, and that this Avas for a loan made to Mrs. Nichols; that Mullen had been settled with for the amount of that loan, and had no longer any interest in the proceeding; and that as to the balance of the judgment the same is Avithout consideration. As a matter of course, if these facts are true, the Mullen judgment can have no claim upon the fund for distribution.
As to the Devereux judgment the averment is that it is claimed by DeAereux to have been given for a loan, and that no loan was made by Devereux to William Nichols. This is rather a meager averment, but it is folloAved by another allegation that both judgments are fraudulent and Avithout bona fide consideration, and have been confessed, and are being used for the purpose of hindering, delaying, and defrauding the other creditors of William Nichols. The giving of the judgments Avithout consideration is a material fact, and in a given case it may be that more than this cannot be stated. It is a case of alleged fraud and the Avant of consideration would establish fraud if proved. It is not necessary to state in the affidavit the means by which the want of consideration is to be proved; but the fact itself, if affirmatively stated in the affidavit, with an averment that tire petitioner expects to be able to prove it, is sufficient to require the granting of the issue.
The order discharging the rule to have the money paid into court and for a feigned issue is reversed; and the feigned issue prayed for is awarded and record remitted for further proceedings, the costs of this appeal to he paid by the appellees.