
    Charles & Thomas Drayton and others, vs. Chandler Logan and others.
    
    
      Bill to foreclose a mortgage, executed in 1788. Defendants offered evidence of various payments, soma of which were contested. and relied on the presumption of payment from lapse of time. The Circuit Court ordered an issue at law, to enquire-if any thing, and hoto much was due, which order was reversed on appeal. ,
    
      An order directing an issue, is a proper subject of appeal.
    
   Chancellor Gaillard

The complainants, as executors of their father, sold a house and lot in Broad street, to Dr. Chandler, and made him titles on the 22d April 1784, and Dr. Chand« ler mortgaged it to them in 1788, to secure the sum of4,347i. 10s. 9d. which was divided into three equal parts, and for which bonds were given, bearing date with the mortgage, one of them to Charles, another to Thomas, and the third to Glen Drayton. The consideration expressed in the titles is 3,560 guineas. The bill is brought to foreclose the mortgage. The defendants say that the bonds are paid, and produce receipts for payments, ending in July, 1795: to Charles Drayton. of £ 2,292 9s. 6d. to Glen Drayton £ 2,001 10s. to Thomas Drayton ¿£1,631 15. making £ 6,381 Os. 5d. Some of these sums were paid between 1784, the date of the titles and 1788, the dates of the mortgage and bonds. Many of the payments are contested, and it is insisted for the complainants there is Still a balance due. The defendants rely as well on these payments as on the presumption of payment arising from length of time, to repel which, a number of facts and circumstances were adduced. These clearly form a subject peculiarly proper for the consideration of ajury. If the defence be sustained, then there will be an end of the claim; if not, it must bo ascertained what is due, and how much and on which of the bonds. If any thing be found due, then the other points made in the case will arise and require the consideration of the court. There being ho legal representative of Dr. Chandler against whom to bring suit, the complainants may bring it against the de-visees and legatees of Dr. Chandler, or such of them as arc in possession of the house and lot, and no objection shall be made to suit being thus brought, unless either of the defendants should before the suit is commenced, administer on Dr, Chandler’s estate. It is ordered that an issue be directed to the court of common pleas, to ascertain whether there be any thing due on the bonds of the complainants, and if any thing, how much and on which of them, and that the verdict of the jury be sent to this court.

.From this order complainants appealed, on the ground, amongst others, that the chancellor on circuit had determined incorrectly in sending the cause to ajury; whereas, it was submitted, that it was a lit subject of inquiry before the proper officer of this court, to whom questions of this kind are usually ¡referred. Decree affirmed by the wholb court,  