certain game called cribbage, with him the said C. D., and to pay him all ON WAGERs. such sum and sums of money as he the said A. B. should lose to the said C. D. by means of his said playing with him the said C. D., he the said C. D. then agreed with and undertook &c. to play at the said game with him the said A. B., and to pay him the said A. B. all such sum and sums of money as he the said C. D. should lose to the said A. B. by means of his so playing with him the said A. B., when he the said C. D. should be thereunto afterwards requested; and the said A. B. avers, that he, confiding &c., did afterwards, to wit, on &c., play at the said game with him the said C. D., who did also then play at the said game with him the said A. B.; and the said C. D., by means of his so playing with him the said A. B. as aforesaid, did then lose to him the said A. B., who did then win of the said C. D. divers sums of money, amounting to a large sum of money, to wit, &c. ; yet the said C. D., although he was then and oftentimes afterwards requested by the said A. B. to pay him the said sum of money so by him lost to the said A. B. in manner aforesaid, did not nor would, when he was so requested as aforesaid, pay, nor hath he, at any time before or since, paid or caused to be paid the said sum of &c. so by him lost to the said A. B. as aforesaid, or any part thereof, to the said A. B., but hath hitherto wholly refused and still refuses so to do. X. ON FEIGNED ISSUES. On the In the Queen's Bench [or "Common Pleas," or "Exchequer of Pleas."] day of, A. D. ————— Commencement, ante, 13.] For that whereas heretofore, to wit, on &c., (k) a certain discourse was had and moved by and between the plaintiff and the (j) See forms of different feigned issues, 1 Wentw. 120 to 240; Plead. Assist. 100, 150; Lil. Ent. 45, 65, 66; 2 Rich. C. P. 120; 1 Mod. Ent. 139; and feigned issues in general, Vin. Ab. Feigned Action; Com. Dig. tit. Chancery. Formerly, the feigned issue was more prolix than at present; see 2 Saund.261; see the modern practice, 1 Chitty's Archb. 677. Nature of feigned issue.-A feigned issue is in the nature of a wager between two or more parties, invented to ascertain a matter in dispute between them, and is either authorized by act of parliament, as under the Tithe Commutation Act, 6 & 7 W. 4, c. 71, s. 46, or directed by a court of law or equity, or by a judge of one of the superior common law courts. Venue. When the venue is local, and a fair trial cannot be had in the proper county, the question may, by feigned issue, be tried in any other county; Skin. 44. Who to be the plaintiff in; 2 Rose, 97. Declaration. The declaration usually commences with an allegation that a certain discourse was had &c., but in some cases, as when a petitioning creditor's debt is to be tried, it is usual to begin with an inducement, as follows, 1 Wentw. 188:-" For that whereas before and at the time of the making of the promise of the defendant hereinafter Leave of Court to try.-The attempt to try Other points. As to consolidation of issues, see 5 Taunt. 167. As to costs in general, see Tidd, 9th edit. 986, 987; 2 Marsh. 355; and as to costs when a feigned issue is directed under the Interpleader Act, see post, 175. When the whole issue need not be proved, see 3 Gwill. on Tithes, 1229. It is said to be proper to move the Court of Chancery for a special jury; Pre. Ch. 264; 2 P. W. 68; 4 M. & S. 195, 196. (k) The day is not material. X. ON FEIGNED ISSUES. Feigned issue to try the existence of a modus in lieu of tithes. (j) ON FEIGNED ISSUES. Plea thereto. Feigned issue, with two counts, defendant, wherein a certain question then arose, [whether, for every acre of land within the parish of &c. producing grass, whether mowed and made into hay, or taken by the mouth of cattle, there hath been, from time whereof the memory of man is not to the contrary, paid by the occupier of such lands to the vicar of the said parish for the time being two pence per acre, in lieu of all tithes of such hay or grass;] and in that discourse the plaintiff then asserted and affirmed, [" that for every acre of land within the said parish of &c. producing" &c., same as the words in italics to the end:] which assertion and affirmation the defendant then contradicted and denied. And thereupon, afterwards, to wit, on the day and year aforesaid, in consideration that the plaintiff, at the request of the defendant, had then paid to the defendant the sum of £5, he the defendant then promised the plaintiff to pay him the sum of £10, if for every &c. [same as the words in italics.] And the plaintiff in fact says, that for every acre of land &c. [same as the words in italics, averring in the affirmative.] Whereof the defendant afterwards, to wit, on the day and year aforesaid, had notice; whereby he the defendant then became liable to pay and ought to have paid to the plaintiff the said sum of £10.(1) Yet the defendant, not regarding his said promise, hath not yet paid the sum of £10, or any part thereof, to the plaintiff (although often requested so to do), but hath hitherto wholly neglected and refused, and still neglects and refuses so to do, To the damage of the plaintiff of and therefore he brings his suit &c. [The pleader framing the declaration also frames the plea and the award of venire, and in short the whole issue, as follows, commencing on a fresh line: And the defendant, by E. F. his attorney, says, that for every &c. [negativing the first assertion in italics,] in manner and form as the plaintiff hath above in that behalf alleged, and of this the defendant puts himself upon the country, and the plaintiff doth the like; thereupon &c. [Award of venire as usual in an issue. Commencement, ante, 13.] For that whereas, before and at the time of the making of the promise of the defendants hereinafter next mentioned, a certain joint fiat in bankruptcy had been and was issued against the defendants. And thereupon afterwards, and before the making of such promise, to wit, on &c., a certain discourse was had and moved by and bedebt, and second tween the plaintiffs and the defendants, wherein a certain question then at the suit of surviving partners, first count to try petitioning creditor's count to try act of bank ruptcy. (m) arose; that is to say, [whether the defendants were, at the issuing of the said fiat, jointly indebted to the plaintiffs, as surviving partners of E. F., late of &c. iron-master, deceased, in the sum of £ or upwards;] and in that discourse the plaintiffs then asserted and affirmed that the defendants were &c. [same as the words in italics to the end,] which said assertion and affirmation the defendants then contradicted and denied, and then asserted and affirmed to the contrary thereof; and thereupon, afterwards, to wit, on the day and year aforesaid, in consideration that the plaintiffs, at the request of the defendants, had then paid to the defendants the sum of £5, they the defendants then promised the plaintiffs to pay them the sum of £10, if they (1) In some precedents is here inserted, "and being so liable, he the defendant then promised the plaintiff to pay him the said sum of £10 upon request.” (m) See notes to preceding form. the defendants were, at the issuing, &c. [same as the words in italics.] And the plaintiffs in fact say, that the defendants were at the issuing of the said &c. [same as the words in italics,] to wit, whereof the defendants, on the day and year aforesaid, had notice, whereby they the defendants then became. liable to pay and ought to have paid to the plaintiffs the sum of £10: And whereas also, after the issuing of the said fiat against the defendants as aforesaid, to wit, on the day and year aforesaid, a certain other discourse was had and moved by and between the plaintiffs and the defendants, wherein a certain other question then arose, that is to say, [whether each of them the defendants had at any time, and when, at and before the date and suing forth of the said fiat in bankruptcy issued against the defendants by the plaintiffs as aforesaid, committed any and what act of bankruptcy;] and in that discourse the plaintiffs then asserted and affirmed, that each of them the defendants &c. [same as the last words in italics], which said last-mentioned assertion and affirmation the defendants then denied, and asserted and affirmed to the contrary thereof; and thereupon afterwards, to wit, on the day and year aforesaid, in consideration that the plaintiffs, at the request of the defendants, had then paid &c. [As in the first count from the asterisk, stating the plaintiff's payment of £5, and the defendant's promise, and averring the affirmative of the last question; notice to defendants and their liability, as in first count, and then conclude as in last precedent. ON FEIGNED Second count, to try act of bankruptcy. And the said defendants, by L. M. their attorney, and as to the said first Plea to first count, say &c. [plea as ante, 172.] And as to the said second count the count. defendants say, [same as first plea, negativing the question in the second count, Plea to second and conclude as ante, 172. Commencement, ante, 13.] For that whereas heretofore, to wit, on &c., a certain discourse was had and moved by and between the plaintiff and the defendant of and concerning a fiat in bankruptcy which had heretofore, to wit, on &c. [date of fiat], been issued under the great seal of Great Britain, and bearing date the same day and year last aforesaid, against the defendant, on the petition of the plaintiff, and in that discourse a certain question then arose, that is to say, [whether the defendant was a trader within the meaning of the statutes in force concerning bankrupts, or any of them, at or before the said date and suing forth of the said fiat against him or not ;] and in that discourse the plaintiff affirmed &c. [Proceed as directed in the last precedent, and as ante, 172, to end of plea and award of venire, mutatis mutandis. count. The like to try trading of a supposed bankrupt. (n) Commencement, ante, 13.] For that whereas heretofore, to wit, on &c., a The like issue certain discourse was had and moved by and between the plaintiff and the in one count to try several defendant of and concerning a certain act of parliament made and passed rights of comin the — year of the reign of &c., intituled "An Act," &c. [set forth the mon in respect of plaintiff's setitle], and of and concerning the moors, commons and waste grounds by the veral freehold said act intended to be divided and inclosed, and the rights of common and copyhold thereupon, and in that discourse a certain question then arose, that is to tain waste say, [whether the plaintiff was entitled to a right of common in and upon the grounds inclosed in pursuance of inclosure act. (o) (n) See a form, Plead. Assist. 100; see the form directed, ante, 172, as to trying a petitioning creditor's debt. estates, on cer ON FEIGNED Feigned issue out of Chancery devisavit vel non of freehold and leasehold estates. (p) said moors, commons and waste grounds, for or in respect of the several freehold and copyhold tenements in the town of &c., of him the plaintiff hereinafter mentioned, that is to say, one freehold messuage, or site of messuage, late E. F.'s, and known by the name of &c., or for and in respect of any of the same freehold or copyhold tenements;] and in that discourse the plaintiff &c.[State the affirmation and defendant's denial of it, as ante, 172.] And thereupon. afterwards, to wit, on the same day and year aforesaid, in consideration that the plaintiff, at the request of the defendant, had then paid to the defendant the sum of £9, the defendant then promised the plaintiff to pay him the sum of £2, if the plaintiff was entitled to a right of common in and upon the said moors, commons and waste grounds for and in respect of the said firstmentioned freehold tenement of the plaintiff; and the further sum of £2, if the plaintiff was entitled to a right of common in and upon the said moors, commons and waste grounds for and in respect of the said freehold tenement of the plaintiff secondly above-mentioned; and the further sum of £2, if the plaintiff was entitled to a right of common in and upon the said moors, commons and waste grounds for and in respect of the said freehold tenement of the plaintiff thirdly above mentioned; and also the further sum of £2, if the plaintiff was entitled to a right of common in and upon the said moors, &c., for and in respect of the said first-mentioned copyhold tenement of the plaintiff; and the further sum of £2 for each of the said five-last-mentioned copyhold tenements of the plaintiff for and in respect of which the plaintiff was entitled to right of common in and upon the said moors, &c., if the plaintiff was entitled to such right of common for and in respect of the said five last-mentioned tenements, or any of them. And the plaintiff avers &c. [affirming the questions as directed, ante, 172, to the end of declaration.] And the defendant, by his attorney, as to the sum of £2, parcel of the said sum of £18 in the said declaration mentioned, saith, that the plaintiff was not entitled to such right of common in and upon the said moors, &c. for and in respect of the said freehold tenement of the plaintiff first above mentioned, as the plaintiff has above alleged, and of this he the defendant puts himself upon the country, and the plaintiff doth the like; and as to the sum of £2, other parcel of the said sum of £18 in the said declaration mentioned, the defendant says that the plaintiff was not entitled, &c. [Separately negativing and taking issue on all the questions, and conclude as ante, 172. Commencement, ante, 13.] For that whereas heretofore, to wit, on &c., a certain discourse was had and moved of and concerning divers freehold estates, to wit, &c., situate in the county of and of and concerning a certain leasehold estate, situate at &c., late the estates of one E. F. deceased, and of which said freehold estates the said E. F. deceased, on &c. [the date of the will], was seised in his demesne as of fee, and afterwards died seised thereof; and of which said leasehold estates the said E. F. deceased, on the day and year last mentioned, was possessed, and afterwards died so possessed thereof; and also of and concerning a certain paper writing, bearing date &c. [the date of the will], purporting to be a last will and testament, and which the defendant then asserted and affirmed was the (p) See a form, 1 Wentw. 135. last will and testament of the said E. F. deceased, and in that discourse a certain question then arose, that is to say, [whether the said E. F. deceased, did by his said will devise the said freehold and leasehold estates or not;] and upon that discourse the plaintiff then asserted and affirmed, &c. [as ante, 172, to the end. Commencement, ante, 13.] For that whereas heretofore, to wit, on &c., a certain discourse was had and moved by and between the plaintiff and the defendant of and concerning him the plaintiff, and in that discourse a certain question then arose, that is to say, [whether he the plaintiff was heir at law of one E. F.]; and thereupon the plaintiff then asserted &c. [as ante, 172, to the end. ON FEIGNED The like to try whether plainlaw or not. tiff was heir at Feigned issue under the Interpleader Act, to try whether goods seized by at the time of the sheriff were Commencement, ante, 13.] For that whereas heretofore, and before the making of the promise by the defendant hereinafter mentioned, certain goods and chattels had been seized and taken in execution by the sheriff of the county of under and by virtue of a certain writ of execution against the goods and chattels of one A. B., and thereupon afterwards, to wit, on the day of A. D. -, a certain discourse was had and the seizure the moved by and between the plaintiff and the defendant, of and concerning claimant. (9) property of the the said goods and chattels, and in that discourse a certain question then arose, that is to say, whether the said goods and chattels were at the time of the seizure thereof by the said sheriff of under and by virtue of the said writ of execution, the goods and chattels of the said plaintiff, and thereupon the plaintiff then asserted and affirmed that the said goods and chattels were at the time of the said seizure thereof by the said sheriff ofthe goods and chattels of him the said plaintiff, which assertion and affirmation the defendant then contradicted and denied, and thereupon afterwards, to wit, on the day and year aforesaid, in consideration that the plaintiff, at the request of the defendant, had then paid to the defendant the sum of £5, he the defendant then promised the plaintiff to pay him the sum of £10, if the said goods and chattels were at the time of the seizure thereof by the said sheriff of ——, the goods and chattels of the plaintiff, and the plaintiff in fact says, that the said goods and chattels were at the time of the seizure thereof by the said sheriff of the goods and chattels of him the said plaintiff, whereof the defendant afterwards, to wit, on the day and year aforesaid, had notice, whereby be the said defendant then became liable to pay and ought to have paid to the plaintiff the said sum of £10; yet the defendant, not regarding his said promise, hath not yet paid the said sum of £10, or any part thereof, to the plaintiff, although often requested so to do, but hath hitherto wholly neglected and refused, and still neglects and (q) As to this issue see 1 & 2 Will. 4, c. 58, and the cases collected on the subject in 2 Chitty's Arch. Prac. 1046. Any other issue directed under the Interpleader Act may easily be framed from this. It is advisable to insert some averment in the declaration to identify the goods, &c. The amount of the damage laid in the declaration is unimportant, as the issue is only directed for the information of the Court, but it is sometimes necessary for the jury to The costs of the proceedings under the In- |