3006. 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. 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 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.65

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.

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.66 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. In this case it will be observed there were two affirmatives, and the ground upon which the issue was holden to be good is 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:

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.

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.68 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.

The nature of the general issue was considered when discussing the several

65 Hob. 113; 5 Taunt. 386; Stearns v. Stearns, 32 Vt. 678; Garland v. Davis, 4 How. 131. 66 Coke, Litt. 126, a; Bacon, Abr. Pleas, G, 1.

67 Tomlin v. Burlace, 1 Wils. 6; Tomlin v. Purlis, 2 Strange, 1177.

68 Dennis v. Dennis, 2 Saund. 329, 330.

kinds of pleas in bar.69 It is not requisite here to re-examine the subject, but only to say that the general issue denies in direct terms the whole declaration.

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.70

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."1

3011. A formal issue is one which is formed according to the rules required by law in a proper and artificial manner.

3012. An informal issue is one which arises when a material allegation is traversed in an improper or inartificial manner;72 the defect of such an issue is cured by verdict."

3013. 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. 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 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."

3015. To accelerate the pleadings of the parties, the courts have adopted

69 Before, 2922.

70 Comyn, Dig. Pleader, R, 1, 2.

711 Chitty, Pl. 482; Lawes, Pl. 113.

12 Bacon, Ábr. Pleas, G, 2, Ń, 5; Bennet v. Holbech, 2 Saund. 319, a, n. 6.

73 Stat. 32, H. VIII, c. 30.

74 Henkin v. Guerss, 12 East, 248; Cas. temp. Hardw. 237; see Fletcher v. Peck, 6 Cranch, 147. Technical feigned issues have never been in common use in this country. The courts of equity, under the statutes and rules of court, here exercise the power of framing issues and sending them to a jury. The fiction of a wager and suit thereon is not in use. This was necessary in England, as the court of chancery could not summon a jury. In some states cases in equity are tried at nisi prius before a jury if the parties desire, and in many states all cases are tried by jury. See on this point Black v. Shreve, 2 Beasl. N. J. 455; Dunn v. Dunn, 11 Mich. 284; Franklin v. Greene, 2 All. Mass. 519; Curtis v. Sutter, 15 Cal. 259; White v. Hampton, 10 Iowa, 238; Gill v. Rice, 13 Wisc. 549: Johnston v. Piper, 4 Minn. 192.

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. If the defendant in like manner, 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.

3016. When an immaterial issue has been formed the court will order the parties to plead de novo, for the purpose of obtaining a better issue; this is called a repleader.

The motion for a repleader is made when, on an examination of the record, the unsuccessful party conceives the issue joined was an immaterial issue, or such as is not proper to decide the action. In such cases, therefore, the court, not knowing for whom to give judgment, will award a repleader.75

When a repleader is granted the parties must begin to replead at the first fault. If the declaration, plea, and replication be all bad, the parties must begin de novo; if the declaration be good, and the plea and replication be both bad, the repleader must be as to both; but if the declaration and plea be both good, and the replication only be bad, the parties replead from the replication only.76

3017. A judgment non obstante veredicto is one rendered in favor of the plaintiff, without regard to the verdict obtained by the defendant. The difference between a repleader and a judgment non obstante veredicto is this, that where a plea is good in form though not in fact, or, in other words, if it contain a defective title or ground of defence, by which it is apparent to the court, upon the defendant's own showing, that in any way of putting it he can have no merits, and the issue joined thereon be found for him, there, as the awarding of a repleader could not mend the case, the court, for the sake of the plaintiff, will at once give judgment non obstante veredicto; but when the defect is not so much in the title as in the manner of stating it, and the issue joined thereon is immaterial, so that the court know not for whom to give judgment, whether for the plaintiff or defendant, there, for their own sakes, they will award a repleader; a judgment non obstante veredicto is always upon the merits, and never granted but in a clear case; a repleader is upon the form and manner of pleading."

77

3018. A plea puis darrein continuance, or since the last continuance, is one which has arisen upon a fact which has happened since the last continuance of the cause, and after issue was joined. It is proper to consider in what cases such pleas are allowed; the time when they must be pleaded; their effects; and their form.

3019. Pleas of this kind are in abatement or in bar, like other pleas.78 Though in general the defendant can regularly plead but once, after which, if there be an issue or demurrer, the cause is to be determined upon it, inasmuch as there can be but one verdict in the cause, yet, if any new matter happens

75 Gerrish v. Train, 3 Pick. Mass. 124. The party committing the first fault in pleading is not entitled to a repleader, though the verdict against him be on an immaterial issue. Andre v. Johnson, 6 Blackf. Ind. 375; Bledsoe v. Chouning, 1 Humphr. Tenn. 85.

76 See Staples v. Haydon, 2 Salk. 579, for several rules as to repleaders. See Lawes, Pl. 175; Stephen, Pl. 119.

"Comyn, Dig. Pleader, R, 18; Bacon. Abr. Pleas, M; 18 Viner, Abr. 567; Archbold, Civ. Pl. 358.

78 Lawes, Pl. 173; Brooke, Abr. Continuance, Pl. 57; Buller, Nisi P. 310.

pending the writ, he may plead it, notwithstanding a former plea, provided it be pleaded since the last continuance.

When the matter of defence has arisen since the commencement of the suit, and before issue joined, it cannot be pleaded in bar to the action generally, but must, when it has arisen before plea or continuance, be pleaded as to the farther maintenance of the suit.79 When such matter has arisen after issue joined, it must be pleaded puis darrein continuance.

The usual matters pleaded puis darrein continuance are matters in abatement which have arisen since last continuance, as the marriage of a feme plaintiff; and this may be pleaded after a plea in bar, because the pleading of the latter waives only such matters in abatement as then existed; or they may be in bar; as, a release, or the discharge of the defendant as a bankrupt.

80

3020. Formerly there were formal adjournments or continuances of the proceedings in a suit for certain purposes from one term to another, and during the interval the parties were, of course, out of court. When any matter arose which was a ground of defence since the last continuance, the defendant was allowed to plead it, which allowance was an exception to the general rule that the defendant can plead but one plea of one kind or class. By the modern practice the parties are, from the day when by the ancient practice a continuance would be entered, supposed to be out of court, and the plaintiff is suspended until the day arrives to which, by the ancient practice, the continuance would extend; at that day the defendant is entitled, if any new matter of defence has arisen in the interval, to plead, according to the ancient practice, puis darrein continuance, before the next continuance.81

A plea puis darrein continuance may be pleaded after the jury are gone from the bar, but not after they have given their verdict.

3021. This plea is not a departure from, but is a waiver of, the first plea, so that no advantage can afterward be taken of it; 83 and to prevent the plaintiff being delayed ad infinitum, it is said there can be but one plea puis darrein continuance; for, if a second were allowed, there is no reason why a third, or any unlimited number, should not be permitted.84

3022. A plea of this kind must be certain, for it is not sufficient to say that since the last continuance such a thing happened, but the day of the continuance must be shown, and also the time and place must be alleged where the matter of defence arose.85 When pleaded in abatement, the plea begins and concludes like those in abatement which are put in at first to the declaration. A plea in bar, pleaded puis darrein continuance, begins by saying that the plaintiff ought not farther to maintain his action against the defendant, and not that the former inquest should not be taken against him; because it is a substantive plea of itself, and comes in place of one previously pleaded; conse

79 Hendrickson v. Hutchinson, 5 Dutch. N. J. 180; Allen v. Newberry, 8 Iowa, 65; Rowell v. Hayden, 40 Me. 582.

80 Smithwick v. Ward, 7 Jones, No. C. 64.

81 Tilton v. Morgaridge, 12 Ohio St. 98.

82 Lawes, Pl. 174. It is held in Massachusetts that a new answer may be filed after verdict, but before judgment. Lewis v. Shattuck, 4 Gray, Mass. 572; Gardner v. Way, 8 Gray,

Mass. 191.

8 Lincoln v. Thrall, 26 Vt. 304; Adams v. Filer, 7 Wisc. 306. Under the New York code a supplemental answer takes the place of this plea; and while such an answer does not necessarily waive the former one, yet, where before the code the new defence would have required a plea puis darrein continuance, the court will require a waiver of the former answer before granting leave to file such supplemental answer. Bate v. Fellowes, 4 Bosw.

N. Y. 638.

84 Gilbert, Civ. Act. 105; Brooke, Abr. Continuance, Pl. 5, 41; Lawes, Pl. 174.

85

Lawes, Pl. 174; 1 Chitty, Pl. 638. See the form of a plea puis darrein continuance. Stephen, Pl. 82.

quently it ought to be concluded with prayer of judgment if the plaintiff ought further to maintain his action. The plaintiff's replication should begin with saying that he, by reason of any thing alleged by the defendant in his plea, ought not to be barred from further maintaining it. In other respects these pleas and the pleadings upon them are governed by the same rules of pleading as prevail in other cases, save that the facts stated in the plea must be verified on oath or affirmation of the defendant.86

3023. Demurrer, from the Latin demorari, or from the old French demorrer, to wait or stay, in pleading, imports, according to its etymology, that the party will remain and not proceed with the pleadings, because no sufficient statement has been made on the other side, but will wait the judgment of the court whether he is bound to answer.

A demurrer may be taken by either party at any stage of pleading before issue is joined. It may be for insufficiency, either in substance or in form; that is, it may be either on the ground that the case shown by the opposite party is essentially insufficient, or on the ground that it is stated in an inartificial manner, for the law requires in every plea, and all other pleadings, two things, the one that there be matter sufficient, the other that it be deduced and expressed according to the forms of law; and if either of these be wanting, it is cause of demurrer.87

3024. Demurrers are, as in their nature, so in their forms, of two kinds: they are general or special.

3025. A general demurrer is one which excepts to the sufficiency of some previous pleading in general terms without showing specifically the nature of the objection; and such demurrer is sufficient when the objection is on matter of substance.88

It cannot be taken to a declaration which contains special and common counts.89 It lies where the declaration shows that there is one jointly liable who is not made defendant.90

3026. A special demurrer is one which excepts to the sufficiency of the pleadings on the opposite side, and shows specifically the nature of the objection and the particular ground of exception: "And the said C D, according to the form of the statute in such case made and provided, states, and shows to the court here, the following causes of demurrer to the said declaration, that is to say, that no day or time is alleged in the said declaration at which the said causes of action, or any of them, are supposed to have accrued," etc.91

A special demurrer is necessary when the objection to the pleading turns on matter of form only; that is, where, notwithstanding such objections, enough appears to entitle the opposite party to judgment as far as relates to the merits of the cause. For by two statutes," passed with a view to the discouragement of merely formal objections, it is provided in nearly the same terms that the

86 Henry v. Porter, 29 Ala. N. s. 619.

87 Where there are several parties, a demurrer, good only as to one if taken separately, is bad as to all if taken jointly. Teter v. Hinders, 19 Ind. 93; Bennett v. Preston, 17 Ind. 291. Thus the objection that some of several defendants have no interest and are improperly joined cannot be taken by demurrer by all. Goncelier v. Foret, 4 Minn. 13.

1 Chitty, Pl. 639; Lawes, Pl. 167; Coke, Litt. 72. a; Bacon, Abr. Pleas, N, 5; Stephen, Pl. 61, where there is a form. Phelps v. Owens, 11 Cal. 22; Morrow v. Lawrence, 7 Wisc. 574. Under many of the modern codes the causes for demurrer are enumerated by the statutes, and in such case the demurrer must assign some cause enumerated. Tenbrook v. Brown, 17 Ind. 410. A general demurrer to a declaration is bad if the declaration state substantially a good cause of action, however defectively. Boynton v. Tidwell, 19 Tex. 118.

89 Barber v. Whitney, 29 Ill. 439. 91 See Stephen, Pl. 62, for a form.

90 Kent v. Holliday, 17 Md. 387. 92 27 Eliz. c. 5, and 4 Anne, c. 16.