properly in equity, a party is not entitled as of right to have an issue submitted to a jury."

§ 618. When an issue should be awarded.

If the court is not satisfied upon the proofs which have been taken as to the truth of the case, it may direct a feigned issue to ascertain the facts. As a general rule, it has, however, the power of determining all questions of fact without resorting to this mode of inquiry, and it should not be employed except where the conflict of witnesses or the obscurity of evidence is such as to make it doubtful on which side the preponderance of evidence lies.10 An issue has been ordered in applying the general principle of the court in the following cases: Whether a certain bond was intended as an indemnity for services or a gift;11 to try the question of forgery of an instrument where one witness has sworn to its genuineness;12 to try whether a son survived his father, where both perished at sea with all on board the ves

ton Banking Co. v. Woodruff, 2 N. J. Eq. 117; Carpenter v. Easton & A. R. Co., 26 N. J. Eq. 168; Hess v. Calender, 120 Pa. 138; Greenville v. Ormand, 44 S. C. 119, 21 S. E. 642; Allen v. Saulpaw, 6 Lea (Tenn.) 477; Cooper v. Stockard, 16 Lea (Tenn.) 140; Rowton v. Rowton, 1 Hen. & M. (Va.) 92; Beverley v. Walden, 20 Grat. (Va.) 147; Jarrett v. Jarrett, 11 W. Va. 585; Ammons v. South Penn Oil Co., 47 W. Va. 610, 35 S. E. 1004; Cecil v. Clark, 44 W. Va. 659, 30 S. E. 216.

Shapira v. D'Arcy (Mass.) 62 N. E. 412, citing many cases; Smith v. Croom, 7 Fla. 180; Goodyear v. Providence Rubber Co., 2 Cliff. 351, Fed. Cas. No. 5,583; Harding v. Fuller, 141 Ill. 308, 30 N. E. 1053. See, for discussion of right of trial by jury, Keith v. Henkleman, 173 Ill. 137, 50 N. E. 692; Spies v. Illinois, 123 U. S. 181; Iowa Cent. Ry. Co. v. Iowa, 160 U. S. 389; Parker v. Simpson (Mass.) 62 N. E. 401.

101 Hoffman, Ch. Pr. 502; Bree v. Beck, 1 Younge, 243; Townsend v. Graves, 3 Paige (N. Y.) 453; Kennedy's Heir & Executors v. Kennedy's Heirs, 2 Ala. 571; Fisler v. Porch, 10 N. J. Eq. 243; Noel v. White, 37 Pa. 514; Williams v. Blakey, 76 Va. 254; Bassett v. Jonnson. 3 N. J. Eq. 417; Earle v. McCartney, 109 Fed. 13; Trenton Banking Co. v. Woodruff, 2 N. J. Eq. 118; Apthorp v. Comstock, 2 Paige (N. Y.) 482; Hord's Adm'r v. Colbert, 28 Grat. (Va.) 49; Wise v. Lamb, 9 Grat. (Va.) 294.

11 Winchelsea v. Garretty, 1 Tam. 68. 12 Peake v. Highfield, 1 Russ. 559.

sel;18 to determine the question of partnership;14 to determine the question of sanity;15 upon a bill for specific performance, when the uncertainty as to the title depended upon matter of fact.16 The practice of submitting the entire case to a jury is discouraged, even though the parties desire such a trial.17 A feigned issue should not be granted to try a question of law.18

§ 619. When issue should be applied for.

The usual time for applying for a feigned issue is at the hearing, but there have been cases in which it has been ordered upon a previous motion.19 It may also be granted upon exceptions to a master's report, where the court has great doubts.20 The court may direct an issue to be tried without expressly revoking a previous order of reference.21 The court may, of its own motion, direct an issue.22

13 Mason v. Mason, 1 Mer. 308.

14 Drope v. Miller, Hempst. 49, Fed. Cas. No. 4,092a.

15 Whitlock v. Smith, 13 Fla. 385; Brown v. Miner, 128 Ill. 148, 21 N. E. 223; Howard v. Howard, 87 Ky. 616, 9 S. W. 411.

16- Seymour v. De Lancey, Hopk. Ch. (N. Y.) 436, 14 Am. Dec. 552; Fox v. Ford, 5 Rich. Eq. (S. C.) 349; Jones v. Jones, 3 Mer. 161. 17 Milk v. Moore, 39 Ill. 584.

18 Crosier v. McLaughlin, 1 Nev. 348; Wolf v. Bollinger, 62 Ill. 368; Thompson's Appeal, 36 Pa. 418; Landis v. Lyon, 71 Pa. 473.

19 1 Hoffman, Ch. Pr. 503; Fullager v. Clark, 18 Ves. 481. The issue should be applied for at an early stage of the proceedings, and the nature of the issue desired should be specified. In re Moyer's Estate, 1 Pears. (Pa.) 407; In re Mealey, 11 Phila. (Pa.) 161; Duncan v. King, 1 Overt. (Tenn.) 79; Bourke v. Callanan, 160 Mass. 195, 35 N. E. 460. For cases involving the time when the application for an issue should be made, see City of Belleville v. Citizens' Horse Ry. Co., 152 Ill. 171, 38 N. E. 584, 26 L. R. A. 681; Tibbetts v. Perkins, 20 N. H. 275; New Orleans Gas Light & Banking Co. v. Dudley, 8 Paige (N. Y.) 452; Hoitt v. Burleigh, 18 N. H. 389; Horner v. Harris' Ex'r, 10 Bush (Ky.) 360; Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, Pick. (Mass.) 369.

20 1 Hoffman, Ch. Pr. 503; Kemp v. Mackrell, 2 Ves. Sr. 579.

21 Field v. Holland, 6 Cranch (U. S.) 8.

22 Meek v. Spracher, 87 Va. 162, 12 S. E. 397; Black v. Lamb, 12 N.

J. Eq. 108; Ringgold v. Patterson, 15 Ark. 209; Black v. Shreve, 13 N. J. Eq. 455; Hoitt v. Burleigh, 18 N. H. 390.

$620. Framing issues.

Issues out of chancery should be made up from the pleadings in the cause.23 The form of an issue was formerly that of an action at law on a wager assumed to have been made respecting a fact in dispute; but this fiction has been dispensed with in most jurisdictions, and the question may be referred to the jury in a direct form.24 As a general rule, the court may direct, not only what shall be tried, but the form of the issue, and who shall be the parties. 25 The issue may be submitted in pleadings raising the issue, 28 but, under the modern practice, the issue usually consists of a series of specific questions,27 which should not be indefinite and indecisive, but specific and distinct.28 If the parties differ as to the form of the issue, it may be referred to the master, to be settled by him.29 Objections to the form of an issue are properly made at the time such order is granted, and, in any event, before trial.30 Such objections should be made in the court from which they are sent.31

28 Horner v. Harris' Ex'r, 10 Bush (Ky.) 360; Morgan v. Fuller, L. R. 2 Eq. 296; Morrell v. Morrell, 3 Barb. (N. Y.) 236; Burr v. Burr, 2 Edw. Ch. (N. Y.) 448. But see Crabb v. Larkin, 9 Bush (Ky.) 164.

24 Adams, Eq. 376. See Milk v. Moore, 39 Ill. 588; Dorr v. Tremont Nat. Bank, 128 Mass. 349; Decker v. Caskey, 1 N. J. Eq. 427; James v. Brooks, 6 Heisk. (Tenn.) 150.

25 Ringwalt v. Ahl, 36 Pa. 336; Lake v. Hardee, 55 Ga. 667, where various issues and the verdict of the jury thereon are set forth.

26 Dorr v. Tremont Nat. Bank, 128 Mass. 357; James v. Brooks, 6 Heisk. (Tenn.) 150.

27 Black v. Lamb, 12 N. J. Eq. 108; Cooper v. Stockard, 16 Lea (Tenn.) 144. See Miller v. Cobb, 64 Hun, 637, 19 N. Y. Supp. 442; Rouse v. Bowers, 108 N. C. 182, 12 S. E. 985; Fanning v. Russell, 94 Ill. 386; Dorr v. Tremont Nat. Bank, 128 Mass. 357.

28 Greene v. Harris, 11 R. I. 5; Ayers v. Scott, Sneed (Ky.) 162; Barth v. Rosenfeld, 36 Md. 604; Milk v. Moore, 39 Ill. 588; Dunn v. Dunn, 11 Mich. 284.

29 1 Hoffman, Ch. Pr. 505.

30 Black v. Lamb, 12 N. J. Eq. 108; Hoobler v. Hoobler, 128 Ill. 645, 21 N. E. 571; Bassett v. Johnson, 2 N. J. Eq. 154.

31 Bell v. Woodward, 47 N. H. 539; Black v. Lamb, 12 N. J. Eq. 108.

§ 621. Form of order for a feigned issue.

[Title of court and cause.]

This cause coming on to be heard with the exceptions to the master's report, and upon the equity reserved, and the same being argued by John V. Henry, on the part of the complainant, and by S. H. Hopkins and T. H. Dyckman on the part of the defendants, and due deliberation being thereupon had,

It is ordered that a feigned issue be made, to try by a jury of the country whether the complainant is or is not seised of an absolute estate of inheritance in the lands in the town of Newburgh, in the county of Orange, which, by the articles of agreement set forth in the complainant's bill of complaint, and proved in the said cause, the said complainant had agreed to convey to Thomas Ellison, deceased, in his lifetime, and to which the said complainant claims to derive his title through James Hallett.

And it is further ordered that the said issue be tried before a jury of the city and county of New York, at a circuit court to be held in and for the said county; that the complainant shall make up and carry down the said issue, and that the same shall be brought to trial upon the usual notice.

And it is further ordered that office copies of the pleadings and exhibits proved in the said cause, and of the evidence taken therein, so far as the same relates to the question of title, may be read upon the trial of the said issue, subject to all legal objections; that either party shall be at liberty to introduce any further evidence upon the trial of the said issue; that either party may re-examine his own witnesses, and subpoena the witnesses who have been examined by the adverse party for the purpose of cross-examining them; and that all further direction be reserved until the coming in of the record and postea.

L. M.,

Judge.32

§ 622. Form of order for settling an issue. [Title of court and cause.]

An application being now made, on behalf of the complainant, for an issue to try the facts in dispute in this cause by a jury, and the cause being in readiness for the taking of proofs against all the defendants, thereupon, on hearing Mr. of counsel for the complainant,

and Mr., of counsel for the defendants,

It is ordered that issues be awarded to try by a jury the matters in controversy in this cause; that such issues be in the form of the following interrogatories, to-wit:

82 3 Hoffman, Ch. Pr. cxlvi.

First. Was a valuable consideration paid by the defendant, J. M., to S. R., named in the pleadings, for the lot of land conveyed to him by deed, dated the and what was such considera

tion?

day of

Second, etc.

And it is further ordered that the defendant, J. M., is to be considered as holding the affirmative of such first issue, and the complainant the negative, etc.

L. M.,

Judge.33

§ 623. Form of feigned issue.

Be it remembered, that on the Monday of —, in this same term, before the justices of the supreme court of judicature of the state of New York, at the, in the city of ―, comes John Den, by B. R., his attorney, and brings into the said court, now here, his certain bill against Richard Fen, in custody, etc., of a plea of trespass on the case, which said bill follows in these words, to-wit:

John Den complains of Richard Fen, being in custody, etc., of a plea of trespass on the case, for that whereas, on the 4th day of March, A. D. 1826, at the city of New York, and in the county of New York, a discourse was had and moved by and between the said John Den, of the one part, and the said Richard Fen, of the other part, of and concerning the title of one W. S. to certain lands in the town of Newburgh, in the county of Orange, which, by certain articles of agreement set forth in a certain bill of complaint, filed in the court of chancery of the state of New York by the said W. S. against the representatives of T. E., deceased, and proved in the said cause, the said W. S. had agreed to convey to the said T. E. in his lifetime, and to which the said W. S. claimed to derive title through one J. H., and whether the said W. S. was or was not seised of an absolute estate of inheritance in the said lands, and whether a certain paper writing produced by the said complainant before M. H., Esq., one of the masters of said court, upon the reference to him in the above cause, purporting to be a deed from H. E. S. to L. S., and to bear date the 16th day of March, 1786, was executed by the said H. E. S. And upon such discourse the said John Den then and there asserted and affirmed that the said paper writing so produced before M. H., Esq., one of the mas ters of said court, upon the reference to him in the said cause, pur porting to be a deed from H. E. S. to L. S., and to bear date the 16th day of March, 1786, was executed by the said H. E. S.; which said assertion the said Richard Fen then and there denied to be true, and then and there affirmed the contrary thereof. And thereupon,

33 The foregoing form is taken from 3 Hoffman, Ch. Pr. 401