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CHAPTER VI.

OF THE ISSUE.

Issue defined; requisites.] An issue is said to be joined, when there is a certain point or matter issuing out of the allegations of the plaintiff and defendant, which consists of an affirmative on one side and a negative on the other; and it is therefore called an issue, from the French word issuer to flow from:1 or it may be derived from the Latin exitus, being the end of the pleadings.2

:

in law or in

An issue is of two kinds; an issue in law, and an issue in Issue either fact. An issue upon matter of law is called a demurrer and fact. it confesses the facts to be true, as stated by the opposite party; but denies, that, by the law arising upon those facts, any injury is done to the plaintiff, or that the defendant has made out a legitimate excuse; according to the party which first demurs, demoratur, rests or abides, upon the point in question. An issue of fact, is where the fact only, and not the law, is disputed; which issue, generally speaking, must be determined not by the judges, but, technically speaking, by the country, per pais, that is, by a jury. As where the plaintiff declares that the defendant owes him a certain sum, and the defendant pleads that he owes him nothing (nil debet); here, whether the defendant owes the plaintiff any thing or not, is an issue of fact, to be tried by the jury.5

1 Boote's suit at law, 110. Co. Litt. 126. a.

23 Black. Com. 314.

33 Black. Com. 314.

4 Ib. 315.

5

Boote's suit at law. 110. 111.

Affirmative

and negative.

An issue should, in general, be upon an affirmative and a negative, and not either upon two affirmatives or two negatives: but it is not necessary that the affirmative and negative be in precise words; and if in debt for rent upon a lease for years, the defendant pleads nil habuit in tenementis, to which the plaintiff replies that he was seized in fee, this is a good issue. Two affirma- So two affirmatives may make a good issue, if the second is so contrary to the first, that it cannot in any way be true; as if duress of imprisonment be pleaded to a bond, it is a good replication that the defendant was at large, at his own disposal, and executed the bond of his own free will, and not for fear of imprisonment, concluding to the country."

tives.

Single point.

Affirmative

pregnant.

8

An issue must be taken on a single, certain and material point, but it is not necessary that such point should consist of a single fact, for various facts may be put in issue if they all constitute but one point. An issue cannot be joined on a and negative negative pregnant, or an affirmative pregnant with a negative, that is, such a negative as supposes or implies an affirmative, or such an affirmative as implies a negative.10 Two or more issues are sometimes joined in the same cause; as where the defendant demurs and pleads to different counts of a declaration, or the plaintiff demurs and replies to different pleas, or where, in an action against two or more defendants, they appear by different attornies and sever in pleading."

Feigned issue.

An issue is sometimes directed by a court of equity to try some matter of fact which it thinks proper to refer to a jury, in which case it is termed a feigned issue; or by a court of law, when a doubtful question arises in those matters which belong to its equitable jurisdiction, and therefore do not ap

Co. Litt. 126. a. Com. Dig.
Pleader, R. 3. 1 Chitty on Plead-
ing, 630.

7 Str. 1177. S. C. 1 Wils. 6.
* Co. Litt. 126. a. Tidd. Pract.
773.

Pleading, 631. 588. 577. Willes. 100. n. c. 204. 3 Caines' Rep. 160. Co. Litt. 126. a.

10

5 Bac. Abr. 419. Co. Litt. 126 a. Com. Dig. Pleader, R. 5.

"Tidd. Pract. 773. and see Co.

Burr. Rep. 320. 1 Chitty on Litt. 125. b.

pear upon the record, as in the common case where the inquiry is, whether a bond and warrant of attorney, on which judg ment was entered, were given for an usurious debt.12

When cause at issue; similiter.] The issue in a cause is joined when the party on whom the last pleading concluding to the country was served, adds the similiter thereto; as where the defendant in his plea puts himself upon the country, the plaintiff may reply by adding, "and the said plaintiff doth the like," &c.; and if the plaintiff conclude his replication by praying it may be inquired of by the country, the defendant may rejoin, by adding the similiter. It is, however, usual for the party filing a pleading concluding to the country, to add the similiter to it himself, without compelling the opposite party to file and serve a similiter.

militer.

It seems that the want of a similiter is no objection to bring- Want of siing the cause to trial:13 and it is well settled, that the want of, or a defect in, the similiter, is amendable after verdict.14

It is ordered by rule of court,15 that, "if the defendant shall plead the general issue, the cause shall be at issue, unless the plaintiff shall, within twenty days thereafter, amend his declaration; and if either party shall, in pleading in any degree after the plea, tender an issue to the country, and if the opposite party shall not demur to the pleading, within twenty days after service of a copy thereof, the cause shall, in each of these cases, be deemed to be at issue."

Where an issue to the country is tendered, and the similiter added by the plaintiff, he may notice the cause for trial immediately, at the peril, however, of the defendant's putting in

12 Tidd. Pract. 773. 1 Dunlap. Pract. 530.

13 Starkie 400. Contra Str. 1117. 14 Cro. Jac. 502. ca. 12. Cowp.

407. Str. 551. Cro. Eliz. 435. ca. 47. 904. ca. 7. Com. Dig. VOL. I.

57

Amendment, M. Burr. Rep. 1793.
Starkie 401. Bingh. on judg. 77.
Contra. Str. 641. S. C. 8 Mod.
376.

15 Rule 27.

a demurrer, bona fide, within the twenty days: but a party has no right to strike out the similiter merely for delay; and neither this nor a frivolous demurrer16 will prevent the plaintiff from going to trial.17

Where the plaintiff neglected to reply to a plea of the statute of limitations, and went to trial upon a record omitting it; but the defendant had the full benefit of a defence upon the statute at the trial, the court refused to set aside a verdict for the plaintiff for irregularity, but allowed him to amend by filing a replication, nunc pro tunc, and amending the record accordingly.18

When the cause is at issue, it is incumbent on the plaintiff to proceed to trial at the first opportunity, or in case of his neglect, the defendant may move for judgment as in case of nonsuit.1

16 1 Cowen. Rep. 154. 17 14 Johns. Rep. 345.

18 4 Cowen. Rep. 394.
19 See post.

CHAPTER VII.

OF THE PROCEEDINGS FROM ISSUE TO TRIAL.

We shall in this chapter treat of the necessary proceedings preparatory to a trial by jury, omitting for the present the consideration of those circumstances, by which the progress of the cause may be delayed or stopped; as by a commission to examine witnesses out of the state; motion for judgment as in case of nonsuit, &c. First, we will speak of the circuit roll, which it is the duty of the plaintiff to prepare; secondly, of the notice of trial or of inquest; thirdly, of the jurors, and the mode in which they are chosen and summoned; and lastly, of the evidence, the witnesses and the subpoena.

SECTION I.

OF THE CIRCUIT ROLL.

It is provided by statute, that the party entitled to bring an Form of roll. issue to trial" shall make out a transcript of the pleadings in the cause relating to such issue, with an entry therein, that the issue or issues, so joined, are ordered by the court to be tried at the circuit court, or sittings, at which the same may be triable, without any respite of the jury, or award of process for their appearance at the next or any other term of the supreme

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