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ence to a master to take accounts or assess damages; and it not infrequently gives leave to either party to apply for further orders or directions "at the foot of the decree" which it orders entered.10 Upon such a clause the court will usually listen to no further applications, except as to matters concerning which directions were contained in the decree first entered. Thus, it has been held that it will not under such a clause entertain an application to set aside a sale made under a decree." If the court is in doubt concerning the facts, it may direct a feigned issue, or an action at law, or a reference to a master, to aid it in determining the same. In one case, when a bill had been filed by a bondholder praying for the appointment of a receiver of a canal company, the court at the hearing denied the application for a receiver, but retained the bill so far as to compel the corporation to file an annual account.12

9 See ch. XXIII

10 Legrand v. Whitehead, 1 Russ. 309; Wetmore v. St. Paul & P. R. Co., 3 Fed. R. 177. But see Hughes v. Jones, 8 De G., F. & J. 307.

11 Wetmore v. St. Paul & P. R. Co., 3 Fed. R. 177; infra, ch. XXVII.

12 Stewart v. C. & O. C. Co., 5 Fed. R. 149.

CHAPTER XXII.

ISSUES AT LAW.

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§ 301. Power of courts to direct issues at law. When the chancellor was in doubt concerning any question of fact arising in the cause, the evidence in regard to which was conflicting or insufficient,' it was his custom to compel its trial before a jury upon a feigned issue; and, if their verdict was satisfactory to him, to assume the truth of the facts established by the same as the basis of his decree. This power of the chancellor is also vested, independently of any special statute, in all the courts of the United States which have equitable jurisdiction; but in cases arising under the patent laws it has been increased by a statute providing that the Circuit Courts of the United States, "when sitting in equity for the trial of patent causes, may impanel a jury of not less than five and not more than twelve persons, subject to such general rules in the premises as may from time to time be made by the Supreme Court, and submit to them such questions of fact arising in such cause as such circuit court shall deem expedient; and the verdict of such jury shall be treated and proceeded upon in the same manner and with the same effect as in the case of issues sent from chancery to a court of law and returned with. such findings." The court may at any time decide a cause without a trial of an issue which it has ordered, and even without revoking its previous order directing one. The order of a judge directing an issue at law is discretionary, and it is doubtful whether or not it may be reviewed upon appeal. It

§ 301. Moons v. De Bernales, 1 Russ. 301; Burkett v. Randall, 3 Mer. 466.

23 Bl. Com. 452.

3 Harding v. Handy, 11 Wheat. 103; Goodyear v. Providence R. Co., 2 Cliff. 351; Johnson v. Harmon, 94 U. S. 371, 378.

518 St. at L., ch. 77, p. 315; 1 Supp. U. S. R. S. 136; Watt v. Starke, 101 U. S. 247.

6 Field v. Holland, 6 Cranch, 8; Cook v. Bay, 4 How. (Miss.) 485.

7 See Black v. Lamb, 1 Beasley (N. J.), 108; Ward v. Hill, 4 Gray (Mass.), 593; Crittenden v. Field, 8

4 No rules upon this subject have Gray (Mass.), 621. hitherto been made.

was formerly an almost invariable custom to direct an issue when the question to be determined was the validity of a will as against an heir, or the true heir-at-law of a decedent, or the right of a rector to tithes. It is very common, moreover,

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when an allegation in a sworn answer, the plaintiff not having waived answer under oath, was only controverted by the testimony of a single witness supported by corroborating circumstances; or when, by determining in the way he inclined, the judge would find a person guilty of forgery.10 It seems to be the opinion of Judge Hammond that it is the duty of a Federal court of equity to direct an issue at law of a common-law claim against a receiver." An issue may be directed notwithstanding a report of auditors upon the facts.12 The court sometimes directs only a single issue, and sometimes several, according to the number of substantial points upon which it deems it necessary to take the opinion of a jury; and it will, when the question to be decided embraces several disputed circumstances, direct an issue upon each of them.13 If the parties cannot agree upon the form of an issue, it will be settled either by the judge or by a master, as the court deems most expedient. going to trial upon an issue neither party is precluded from any right he may afterwards have to appeal from the order directing it.15

By

302. Matters concerning which an issue is directed.No party will be permitted to take an issue in a different form from that which he has stated in his pleadings;1 but the court may upon its own motion direct an issue to try a matter not in issue arising upon the hearing, and which it thinks should be determined before a final decree is rendered. An issue also may be directed upon claims brought in under a decree by

83 Bl. Com. 452; Lord Fingal v. Blake, 1 Molloy, 113; Vaigneur v. Kirk, 2 Desaus. (S. C.) 640; Williams v. Price, 4 Price, 156, 160.

9 Daniell's Ch. Pr., ch. xxvi, § 1. 10 Bishop of Winchester v. Fournier, 2 Ves. Sen. 445, 446; Apthorp v. Comstock, 2 Paige (N. Y.), 482. But see Peake v. Highfield, 1 Russ. 559.

11 Atkyn v. Wabash Ry. Co., 41 Fed. R. 193; supra, § 251.

12 Field v. Holland, 6 Cranch, 8.

13 Bryan v. Parker, 1 Y. & C. 170; Bailey v. Sewell, 1 Russ. 239; Earl of Newburgh v. Countess, 5 Madd. 364. 14 Daniell's Ch. Pr., ch. xxvi, § 1. 15 White v. Lisle, 3 Swanst. 342; Legare v. Daly, 1 Ves. Sen. 192; De Tastet v. Bordenave, Jacob, 516.

§ 302. 1St. Paul's v. Kettle, 2 V. & B. 1; Bennett v. Neale, Wightw. 324; Savage v. Carroll, 1 Ball & B.

548.

2 Balch v. Tucker, 2 Ch. Cas. 40.

persons not upon the record. An issue will not, however, be directed to establish a point which a party set up in his pleading but omitted in his proof.

According to the

§ 303. Time when an issue is directed. old practice an issue was rarely directed before the original hearing of a cause.1 Instances have occurred, however, when this has been done before that time upon motion, and even to determine the facts upon a motion for an injunction or a receiver, when the affidavits for or against the motion were conflicting. An issue has been often granted after the original hearing at a hearing for further directions; and even afterwards. It has been said that, in the Federal courts, an order for an issue should not be made until all the proofs have been taken and publication has passed. Under the statute providing for the direction of issues in patent causes, it would seem that one can now be directed by an interlocutory order more frequently than formerly."

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§ 304. Mauner of trying an issue.— The manner of trying a feigned issue is thus described by Blackstone; "But, as no jury can be summoned to attend this court, the fact is usually directed to be tried at the bar of the court of King's bench, or at the assizes upon a feigned issue. For (in order to bring it there, and have the point in dispute, and that only, put in issue) an action is brought, wherein the plaintiff, by a fiction, declares that he laid a wager of 57. with the defendant that A was heir-at-law to B; and then avers that he is so; and therefore demands the 57. The defendant admits the feigned wager, but avers that A is not the heir to B, and thereupon that issue is joined, which is directed out of chancery to be tried; and thus the verdict of the juror at law determines the fact in the court of equity. These feigned issues seem borrowed from the

3 Price v. Price, cited in 2 Smith's Ch. Pr. 76.

4 Savage v. Carroll, 1 Ball & B. 548; Price v. Berrington, 3 Macn. & G. 486. § 303. 1 Fullagar v. Clark, 18 Ves. 481.

2 Middleton v. Sherburne, 4 Y. & C. 358; Kent v. Burgess, 11 Sim. 361; Townley v. Deare, 3 Beav. 213; Lancashire v. Lancashire, 9 Beav. 259.

3 Gardiner v. Rowe, 4 Madd. 236; De Tastet v. Bordenave, Jacob, 516. 4 New Orleans G. L. & B. Co. v. Dudley, 8 Paige (N. Y.), 452.

5 Price v. Price, cited in 2 Smith's Ch. Pr. 76.

6 Goodyear v. Providence R. Co., 2 Fish. Pat. Cas. 499.

718 St. at L., ch. 77, p. 315; 1 Supp. U. S. R. S. 136.

sponsio judicialis of the Romans: and are also frequently used in the courts of law, by consent of the parties, to determine some disputed right without the formality of pleading, and thereby to save much time and expense in the decision of a cause."1 The legal fiction is, however, now practically out of use; and issues are tried upon the common-law side of a Circuit or District Court frequently by the same judge that directed them. The course of proceeding upon the trial of an issue is substantially the same as that in ordinary trials at common law, unless the judge who directed it has given special directions upon the subject. When, however, a will was sought to be proved against an heir-at-law, at the suit of a devisee, it was necessary by the former practice to prove the execution of the will by examining all the witnesses who were alive and capable of giving testimony. If the order for an issue direct that a number of witnesses be examined, but the plaintiff declines to call some, the judge himself will call and examine the rest. It seems, too, that the jury should be sworn in the words of the order of issue. The order of issue, however, usually contains directions as to admissions to be made and documents to be produced by the parties. No admission of any fact not clearly admitted by the pleadings will, however, be required. If such directions are omitted in the order for the issue, they may be obtained afterwards upon motion. The party upon whom the burden of proof rests, whether he be plaintiff or defendant in the original suit, is directed by the order to act as plaintiff in the issue. 10 It is the defendant's duty to name an attorney to appear for him at the trial of the issue. If he fail to do so, it has been held that an order may be obtained directing that he name an attorney in four days, or else that the issue be taken as tried and a verdict given for

§304. 13 Bl. Com. 452.

2 See Wilson v. Riddle, 123 U. S. 608. 3 See Kerr v. South Park Com'rs, 117 U. S. 379; Wilson v. Riddle, 123 U. S. 608.

4 Townsend v. Ives, 1 Wilson, 216; Ogle v. Cook, 1 Ves. Sen. 177; Bullen v. Michel, 2 Price, 399; Bootle v. Blundell, 19 Ves. 494.

5 Groom v. Chambers, 2 Mont. & Ayr. 742.

6 Wilson v. Barnum, 1 Wall. Jr. 342. 7 Duke of Beaufort v. Morris, 2 Phil. 683; Apthorp v. Comstock, 2 Paige (N. Y.), 482; Cart v. Hodgkin, 3 Swanst. 161.

8 Duke of Beaufort v. Morris, 2 Phil. 683.

9 Marsh v. Sibbald, 2 V. & B. 375. 10 Parker v. Morrell, 2 Phil. 453.

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