
    RHOADS v. HOOPES.
    December 31, 1836.
    
      Motion for a new trial.
    Where, on the trial of a feigned issue formed to determine disputed facts in case of contending claimants to the proceeds of the sheriff’s sale of land, there being several counts in the narr., evidence is give» in relation to the facts set forth in one count only, and the jury render a general verdict, the court will direct judgment to be entered on the verdict on that particular count.
    THE facts of this case were, that a venditioni exponas had issued against one Morton, at the suit of Chew. The real estate of Morton was sold under the writ by the sheriff, and the proceeds of sale were paid into court for distribution. The court appointed an auditor to report distribution, before whom appeared the parties in this case, Rhoads and Hoopes, claiming to be creditors of the fund as the holders of incumbrances. The plaintiff claimed an issue upon disputed facts before the auditor; he reported it to the court, which on motion directed a feigned issue to be formed according to the 87th section of the act, relating to executions, of June 16th, 1836, {Vide McDaniel v. Haly, 1 Miles, 353.) The plaintiff in the feigned issue filed a declaration of two counts containing different averments of facts, to which the defendant filed special pleas. On the trial, the judge told the jury there was no evidence applicable to the second count, but left to them the facts which related to the first count. The jury found a verdict for the plaintiff generally. The defendant moved for a new trial, and assigned several reasons. The one material to notice was as follows, viz:
    “ Because the jury have found generally for the plaintiff, without finding whether the assignment of said judgment, was made in payment of the lot conveyed by Ilennis to Hoopes, or as security for the payment thereof, whereas it was their duty to have found one fact or the other.”
    
      Graham, for the plaintiff.
    
      Chester, for the defendant.
    
      Authorities cited: I Boss. & Pull. 329; Doug. 376 ; 9 5. & R. 23; 2 S. & R. 219 ; 6 S. & i?. 385 ; 10 S. & R. 211; 4 Yeales 442 | 15 Johns. 318; 3 Term R. 750 ; 7 Mass. R. 358.
   Per Curiam.—

This being a feigned issue to determine disputed facts, is clearly within the control of the court after verdict, as to the entry of judgment. On the trial, no evidence relating to the issue presented by the second count and plea, was ottered. The jury, therefore, found the facts alleged in the first count in favour of the plaintiff, and the court will order judgment upon it. An entry will be made on the record accordingly.

Motion refused, and judgment for plaintiff on the first count.  