ISSU E. In Realty Law. Descendants. All persons who have descended from a com mon ancestor. 3 Ves. Ch. 257 ; 19 id. 547; 1 Roper, Leg. 90.
In a will it may be held to have a more restricted meaning, to carry out the testa tor's intention ; 7 Ves. Ch. 522 ; 1 Roper, Leg. 90. 2 Wills. Exec. 386, n. ; but it has been held that a devise to "issue" means prima facie legitimate issue, and an inten tion to include illegitimates must appear from the will itself without resort to extrin sic evidence ; Flora v. Anderson, 67 Fed. 182. See Bac. Abr. Curtesy (D), Legatee.
If the term be used in the sense of heirs, that is, as comprehending a class to take by inheritance, it is to be interpreted as a term of limitation, and brings the case within the Rule in Shelley's case; and this is the in terpretation that prima facie will be given it ; Robins v. Quinliven, 79 Pa. 333. It means, prima facie, "heirs of the body"; Stayman v. Paxson, 221 Pa. 446, 70 Atl. 803 ; but if the context indicate a different inten tion, it will be sustained as a word of pur chase; 2 Wins. R. P. 603. In a deed it is al ways taken as a word of purchase; Taylor v. Taylor, 63 Pa. 483, 3 Am. Rep. 565 ; 4 Term R. 299 ; 2 Ves. Sr. 681; 2 Wms. R. P. 604.
In Pleading. A single, certain, and ma terial point, deduced by the pleadings of the parties, which is affirmed on the one side and denied on the other.
The entry of the pleadings. 1 Chitty, P1. 630.
Several connected matters of fact May go to make up the point in issue.
An actual issue is one formed in an action brought in the regular manner, for the pur pose of trying a question of right between the parties.
A collateral issue is one framed upon some matter not directly in the line of the plead ings; as, for example, upon the identity of one who pleads diversity in bar of execution. 4 Bla. Com. 396.
A common issue is that which is formed upon the plea of non est factum to an action of covenant broken.
This is so called because it denies the deed only, and not the breach, and does not put the whole declaration in issue, and because there is no general issue to this form of ac tion. 1 Chitty, Pl. 482; Gould, Pl. c. 6, pt.
§ 7.
An issue in fact is one in which the truth of some fact is affirmed or denied.
In general, it consists of a- direct affirma tive allegation on one side and a direct nega tive on the other. Co. Litt. 126 a; Bac. Abr. Pleas (G 1); 2 W. Bla. 1312; Simonton v. Winter, 5 Pet. (U. S.) 149, 8 L. Ed. 75. But an affirmative allegation which completely excludes the truth of the preceding may be sufficient; 1 Wils. 6. Thus, the general issue in a writ of right (called the mise) is formed by two affirmatives; the demandant claim ing a greater right than the tenant, and the tenant a greater than the demandant. 3 Bla. Corn. 195, 305. And in an action of dow er the count merely demands the third part of ( ] 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 es tate, etc., and that be could not endow the
demandant thereof, etc.; which mode of de nial, being argumentative, would not, in gen eral, be allowed. 2 Saund. 329.
A feigned issue is one formed in a fictitious action, under direction of the court, for the purpose of trying before a jury some question of fact.
Such issues are generally ordered by a court of equity, to ascertain the truth of a disputed fact. They are also frequently used in courts of law, by the consent of the par ties, to determine some disputed rights with out the formality of plea'ding; and by this practice much time and expense are saved in the decision of a cause ; 3 Bla. Com. 452. Suppose, for example, it is desirable to set tle a question of the validity of a will in a court of equity.
For this purpose an action 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 A, then avers it is his will, and therefore de mands the money ; the defendant admits the wager, but avers that it is not the will of A ; and thereupon that issue is joined, which is directed out of chancery, to be tried; and thus the verdict of the jurors at law deter mines the fact in the court of equity. A feigned issue is also formed for trial by a jury in certain interpleader proceedings ; as in proceedings to test the title to goods levied upon by the sheriff and claimed by a third party.
The name is a misnomer, inasmuch as the issue itself is upon a real, material point in question between the parties, and the circum stances only are fictitious. It is a contempt of the court in which the action is brought to bring such an action, except under the direction of some court ; 4 Term 402.
A formal issue is one which is framed ac cording to the rules required by law, in an artificial and proper manner.
A general issue is one which denies in di rect terms the whole declaration: as, for example, where the defendant pleads nil deb et (that he owes the plaintiff nothing), or nut disseisin (no disseisin committed). 3 Greenl. Ev. § 9 ; Steph. Pl. 220; 3 Bla. Com. 305. See GENERAL ISSUE.
An immaterial issue is one formed on some immaterial matter, which, though found by the verdict, will not determine the merits of the cause, and will leave the court at a loss how to give judgment 2 Wms. Saund. 319, n. 6. See IMMATERIAL ISSUE.
An informal issue is one which arises when a material allegation is traversed in an im proper or inartificial manner. Rae. Ahr. Pleas (G 2), (N 5); 2 Wms. Saund. 319 a, n. 7. The defect is cured by verdict, by the statute .32 Hen. VIII. c. 30.
A material issue is one properly formed on some material point which will, when decid ed, settle the question between the parties.
A special issue is one formed by the de fendant's selecting any one substantial point and resting the weight of his cause upon that. It is contrasted with the general issue. Comyns, Dig. Pleader (R 1, 2).