Page:Black's Law Dictionary (Second Edition).djvu/666

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ISSUE

called the "issue," and is designated, according to Its nature, as an "issue in fact” or an "Issue In law." Brown.

Issues arise upon the pleadings, when a fact or conclusion of law is maintained by the one party and coutroverted by the other. They are of two kinds: (1) Of law; and (2) of fact. Code N. Y. §24s; Rev. (lode Iowa 1880. § 2737; Code Uiv. Proc. Cal. § 588.

Issues are classified and distinguished as follous:

(macro! and spcmal. The former is a plea which traverses and denies, briefiy and in general and Sl.II.l.|I1‘I‘ll'y terms, the whole declarnlon, indictment, or complaint, without tendering new or special matter. See Stepll. Pl, 155. I\IcAll1ster v. State, 94 Md. 290, 50 .-\t1. 1040; Standard Loan & Ace. Ins. Co. v. 'Ibornton. 97 Tenn. 1, 40 S. W. 136. Examples of the general issue are “not gui.lly," "mm os.\-uvnpsit," "nil dcbet," “mm or! fuctum-." '1'he latter ls formed when the defendant chooses one single material point, which he traverses, and reste his whole case upon its determination.

Material and iumm.ten‘u.l, They are so described according as they do or do not bring up some material point or question which, when determined by the \eI‘(li(‘t, will dispose of the whole merits or the case, and leave no uncertainty as to the judgment.

Format and infm-mu.l. The former species of issue is one framed in strict accord- ance with the technical rules of pleading. The latter arises when the material allegations of the declaration are traversed, but in an iuartificial or untechnical mode.

A collateral Issue is an issue taken upon matter aside from the intrinsic merits of the action, as upon a plea in abatement: or a.»-me from the direct and regular order of the pleadings, as on a demurrer. 2 Archb. Pr. I\. B. 1, G, bk. 2, pts, 1, 2; Strickland v. Maddox, 4 Ga. 39-}. The term "collateral" is also applied in England to an issue raised upon a plea of diversity of person, pleaded by a criminal who has been tried and con- victed. In bar of execution, viz., that he is not the some person who was attainted. and the like 4 Bl. Comm. 396.

Real or feigned. A real Issue is one form- ed In a regular manner in a regular suit for ibe purpose of determining an actual controversy. A feigned Issue is one made up by dlrcction of the Court, upon a supposed (."IS(', for the purpose of obtaining the verdict of a jury upon some question of fact collaterally luvolied in the cause.

Common issue is the name given to the issue raised by the plea of non est factum to an action for breach of covenant.

In real law. Descendants. All persons who have descended from a common ancestor. 3 Yes. 257; 17 Ves. 431; 19 Ves. 547; 1 Rap. Log. 90.

In this sense_ the word Includes not only a rhild or children, but all other descendants in

658

ITA SEMPER FIAT RELATIO

whatever degree; end it is so construed gener- ally in deeds. But, when used in wills, it is, n! course, subject to the rule of construction that the intention of the testator, ns ascertained from the will, is to have ctfect. rather than this technical meaning of the language used by him ' and hence issue ma_v, in such a connection. be restricted to children, or to descendants living at the death of the tt-stator. “here such an intention olearly appears. Abbott.

In business law. A class or series of bonds, debentures, etc., comprising all that are emitted at one and the same ttrne.

—Issne in fact. In pleading. An issue taken upon or consisting of matter of Moi, the [act only, and not the law, being disputed, and which is to be tried by a jury. 3 Bl. Comm.

14, 3 3: Co. Litt. 126:1; 3 Stenh. Comm. 2. See Code Civ_ Proc. Cal. § 590.—Issuo in law. In pleading. An issue upon matter of law, or consisting of matter of law, being produced by n demurrer on the one side, and a joinder in demurrer on the other. 3 Bl. Comm 314: 3 Steph. Comm. 572. 590. &e Code Civ. Proc. Cal. § 589.—Issue roll. In English prsctice. A roll upon which the issue in actions at law was formerly required to be entered, the roll being entitled of the term in which the Issue was joined. 2 Tidd. Pr. 733. It was not. how- ever, the practice to enter the issue at full length, if trinble by the country, until after the trial, but only to make nn indpitttr on the roll. ‘id. 734.

ISSUES. In English law. The goods and profits of the lands of a defendant against whom a writ of dlstrmgas or distress infinite has been issued, taken by virtue of such writ, are called "Issues." 3 Bl. Comm. 280: 1 Chit. Grim. Law, 351.

I'1‘A EST. Lat. So it is: so It stands In modern civil law, this phrase is a form of attestation added to exemplificatinns from n notary‘: register when the same are l.lI.‘lll(I by the successor in office of the notary who made the original entries

ITA L]-IX SCRIPTA EST. Lot. So the law is wrltten. Dig. 40, 9. 12. The law must be obeyed notwithstanding the apparent rigor of its application. 3 Bl. Comm. 430 We must be content with the law as it stands. nithout inquiring into its reasons. 1 Bl. Comm. 32.

ITA QUOD. Lat. In old practice. So that. Formal words in wrlts. Ito quml Imbcas corpus, so that you have the body. 2 Mod. 130.

The name of the stipulation in a suhmission to arbitration which begins with the words “so as [ita quad] the award be made of and upon the premises."

In old conveyancing. So that. An expression which, when used in :1 deed, for» merly made an estate upon condition. Lltt § 329. Sheppard enumerates it among the three words that are most proper to make an estate conditional. Shep, Touch. 121, 122.

Its se-per Int relatio nt valent dispositio. 6 Coke, 76. Let the interpretation