Entered according to the act of Congress, in the year 1840, by ROBERT H. SMALL, In the Clerk's Office of the District Court for the Eastern District of Pennsylvania. CHAPTER XXX. Of MAKING UP, and ENTERING the ISSUE: and of the ROLLS of the COURTS; with the MANNER of BRINGING in, and DOCKETING them. 1 An issue is defined to be a single, certain, and material point, issuing out of the allegations or pleadings of the plaintiff and defendant;(a) but it more commonly signifies, the entry of the allegations or pleadings themselves: And it is either in law, upon a demurrer; or in fact, which is triable by the court, upon nul tiel record, or by a jury, upon pleadings concluding to the country. An issue in fact triable by a jury, is either such as arises in the course of an adverse suit, or is directed by some court of law or equity, or framed under the authority of an act of parliament, for the trial of a disputed question; which latter is called a feigned issue.(b) 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. (c) In these cases, there is only one trial of the issues in fact; and the jury who try them assess the damages for the whole cause of action, or against all the defendants, absolutely, if the other issues have already been determined in favour of the plaintiff, or otherwise conditionally, provided judgment shall be afterwards given for him. The issue, as dependent on the pleadings, is general or special. In the King's Bench, in every action wherein the defendant pleads the general issue, or demurs generally to the declaration; on a plea of plene administravit, by an executor or administrator; in debt, when the defendant pleads special non est factum, comperuit ad diem to a bail bond, or nul tiel record to an action on a judgment or recognizance; in covenant, when his plea concludes to the country; and in trespass, when he pleads son assault demesne, liberum tenementum, or not guilty to a new assignment; the issue is made up by the attornies: who likewise make up all issues and demurrers upon writs of error, scire facias, and audita querela, and repleaders, or other matters formerly entered of record. (d) And upon a *general demurrer to a plea of nil debet, in an action of debt on [*718] bond, the demurrer book is made up by the plaintiff's attorney, and not by the clerk of the papers. (aa) In all other cases, both by bill and original, in the King's Bench, the issue, or, as it is commonly termed, the paper book, or, upon an issue in law, the demurrer book, is made up by the clerk of the papers; (bb) who charges the plaintiff's attorney eight pence per folio for the whole book, and four pence per folio for all the pleadings subsequent to the declaration, of which the plaintiff's attorney furnishes (a) Co. Lit. 126. a. (c) See further, as to issues 1 Chit. Pl. 4 Ed. 565, &c. (aa) 5 Barn. & Cres. 766. 8 Dowl. & Ryl. 609. S. C. (b) Append. Chap. XXX. § 57. 667050. |