No. 3005. Book 4, tit. 8, chap. 8, sec. 3, § 2, art. 1. No. 3007. found by the verdict, will not determine the merits of the cause, and will leave the court at a loss for which of the parties to give judgment. (a) The following is an example: when in an action of assumpsit, against an administratrix, on promises of the intestate, she pleaded that she, instead of the intestate, did not promise; after verdict a repleader was awarded.(b) § 2. Of the kinds of issues. 3005. When considered as to their effect, issues are material and immaterial; when examined as to the mode by which they are to be tried, they are issues in law and issues in fact; when as to their regularity, they are formal and informal; and when as to the mode by which they are produced, they are actual or feigned. Art. 1.-Of material and immaterial issues. 3006.-1. Issues are material when properly formed on some material point, which will decide the question in dispute between the parties; as, where the plaintiff declares in assumpsit on a promissory note, and the defendant pleads non assumpsit, on which issue is joined. 3007.-2. Immaterial issues are those which are predicated on some immaterial fact, which, though found by the verdict, will not determine the merits of the cause, and would leave the court at a loss how to give judgment: as where, to an action of debt on bond conditioned for the payment of one hundred and fifty dollars at a certain day, the defendant pleads the payment of one hundred dollars, according to the form of the condition, and the plaintiff, instead of demurring, tenders issue upon such payment, it is manifest that, whether the issue be found for the plaintiff or the (a) 2 Saund. 319, n. 6; Com. Dig. Pleader, R 18. No. 3008. Book 4, tit. 8, chap. 8, sec. 3, § 2, art. 2. No. 3009. defendant, it will remain equally uncertain whether the plaintiff is entitled or not to maintain his action; for in an action for the penalty of a bond conditioned to pay a certain sum, the only material question is whether the exact sum were paid or not, and a payment in part is a question beside the legal merits. (a) Art. 2.—Of issues in law and issues in fact. 3008. An issue in law is one which admits all the facts, and rests simply on a question of law. It is said to consist of a single point, but by this it must not be understood that such issue involves, necessarily, only a single rule or principle of law, or that it brings into question the legal sufficiency of a single fact only. It is meant that such an issue reduces the whole controversy to the single question, whether the facts, confessed by the issue, are sufficient in law to maintain the action, or defence of the party who alleges them. 2. Of an issue in fact. 3009. An issue in fact, is one in which the parties disagree as to the existence of such facts, one affirming they exist, the other denying it. By the common law, every issue in fact, subject to some exceptions noticed below, must consist of a direct affirmative allegation on the one side, and a direct negative on the other.(b) But it has been holden that where the defendant pleaded that he was born in France, and the plaintiff replied that he was born in England, it was sufficient to form a good issue. (c) In this case it will be observed there were two affirmatives, and the ground upon which the issue was holden to be good is, (a) Hobb. 113; 5 Taunt. 386. (b) Co. Litt. 126, a; Bac. Ab. Pleas, G 1. (c) Tomlin v. Burlace, 1 Wils. 6; Tomlin v. Purlis, 2 Str. 1177. No. 3010. Book 4, tit. 8, chap. 8, sec. 3, § 2, art. 2. No. 3010. that the second affirmative is so contrary to the first, that the first cannot in any degree be true, if the last is not false. The exceptions above mentioned to the rule that a direct affirmative and a direct negative are required, are the following: 1. The general issue upon a writ of right is formed by two affirmatives: the demandant, on the one side, avers that he has a greater right than the tenant; and, on the other side, the tenant claims to have a greater right than the demandant. This, which in personal actions is called an issue, is here called the mise. 2. In an action of dower, the count merely demands the third part of the acres of land, etc., as the dower of the demandant of the endowment of A B, heretofore the husband, etc., and the general issue is, that A B was not seised of such estate, etc., and that he could not endow the demandant thereof, etc. (a) This mode of negation, instead of being direct, is merely argumentative, and argumentativeness is not generally allowed in pleading. 3010. Issues in fact are divided into general issues, special issues, and common issues. 1. The nature of the general issue was considered when discussing the several kinds of pleas in bar.(b) It is not requisite here to reëxamine the subject, but only to say that the general issue denies in direct terms the whole declaration. 2. The special issue is when the defendant takes issue upon any one substantial part of the declaration, and rests the weight of his case upon it; he is said to take a special issue in contradistinction to the general issue, which denies and puts in issue the whole declaration.(c) (a) 2 Saund. 329, 330. (b) Ante, n, 2922. (c) Com. Dig. Pleader, R 1, 2. No. 3011. Book 4, tit. 8, chap. 8, sec. 3, § 2, art. 3, 4. No. 3014. 3. Common issue is the name given to that which is formed on the single plea of non est factum, when pleaded to an action of covenant broken. This is so called, because to an action of covenant broken there can properly be no general issue, since the plea non est factum, which denies the deed only, and not the breach, does not put the whole declaration in issue.(a) Art. 3.-Of formal and informal issues. 3011.-1. A formal issue is one which is formed according to the rules required by law, in a proper and artificial manner. 3012.-2. An informal issue is one which arises when a material allegation is traversed in an improper or inartificial manner; (b) the defect of such an issue is cured by verdict.(c) Art. 4.-Of actual and feigned issues. 3013.-1. An actual issue is one formed in an action brought in the regular manner, for the purpose of trying a question of right between the parties. 3014.-2. A feigned issue is one directed by a court, generally by a court exercising equitable powers, for the purpose of trying before a jury a matter in dispute between the parties. When in a court of equity any matter of fact is strongly contested, the court usually directs the matter to be tried by a jury. But as no jury is summoned to attend this court, the fact is usually directed to be tried in a court of law upon a feigned issue; for this purpose an action is brought in which the plaintiff, by a fiction, declares that he laid a wager for a sum of money with the defendant, for example, that a certain paper is the last will and testament of Paul, then avers that it is his (a) 1 Chit. Pl. 482; Lawes, Pl. 113. (b) Bac. Ab. Pleas, G 2, N 5; 2 Saund. 319, a, n. 6. No. 3015. Book 4, tit. 8, chap. 8, sec. 3, § 3. No. 3015. will, and therefore demands the money; the defendant admits the wager, but avers that it is not the will of Paul, and thereupon that issue is joined which is directed out of chancery to be tried; and thus the verdict of the jurors at law, determines the fact in a court of equity. These feigned issues are also frequently used in courts of law, by consent of parties, to determine some disputed rights, without the formality of pleading, and by this practice much time and expense are saved in the decision of a cause. But in all these cases the consent of the court must be previously obtained. To attempt the trial of a feigned issue, or fictitious action, on a pretended wager, where the parties have. no rights, for the purpose of obtaining the opinion of the court on an abstract point of law, is a contempt of court, for which the parties and their attorneys may be punished. (a) 3. How issues are procured. 3015. To accelerate the pleadings of the parties, the courts have adopted certain general rules, by which the parties are required to put in their several pleadings within stated times, and in some states statutory provisions require them so to plead; on failure to plead as required, the court render judgment against the party in default. If, for example, the plaintiff fail to file his declaration, reply to the plea of his antagonist, etc., after being notified that a rule has been taken requiring him to file the declaration, replication, etc., then judgment of nonsuit is given against him. the defendant, in like matter, upon a similar notice, neglect to plead, rejoin, etc., judgment is rendered against him for the plaintiff's claim, which judgment is, in general, only interlocutory. If (a) Henkin v. Guerss, 12 East, 248; Rep. t. Hard. 237. See Fletcher v. Peck, 6 Cranch, 147. |