and that the premises affected by this suit are situated in said county, and are bounded and described as follows, to-wit: [Describe the premises.]

[DATE.]

A. B., Attorney for Plaintiff.

§ 1122. Complaint for maliciously filing a lis pendens.

I. That the plaintiff, at the times hereinafter mentioned, was and still is the owner in fee of the following described real estate: [Insert description.]

II. That on the . . . day of . . ., 19., the defendant, by his attorney duly authorized, caused to be filed in the office of the [insert title of officer with whom lis pendens was filed] a notice of the pendency of a certain action then pending in the . . . court of the county of . . . wherein the said defendant was plaintiff and this plaintiff [and others] were defendants, by which said notice it was alleged that said action had been brought to recover the interest of the plaintiff's husband, E. F., in the said real estate. III. That the said complaint, in said last described action, alleged and declared that the said premises hereinafter described were in fact the property of the said E. F., and that the same had theretofore been conveyed to the plaintiff by a certain conveyance which was without consideration, and was fraudulent and void as to said defendant, who claimed to be a creditor of said. E. F.

IV. That the allegations of said notice, so filed as aforesaid, and of the said complaint, charging that said land was in fact owned by said E. F., and that this plaintiff's title thereto was fraudulent and void as against the creditors of said E. F. were and are wholly false, and were known so to be by the said defendant at the time of the commencement of the said action, and of the filing of said notice, but that the defendant, notwithstanding his said knowledge of the falsity of all of said statements and allegations, willfully and maliciously caused said action to be commenced and said notice to be filed as aforesaid, with intent thereby to prevent the plaintiff from making a sale of said land, and to cause it to be suspected and believed that the plaintiff had not good title thereto.

...

day of

19..,

this

V. That thereafter and on the plaintiff received a bona fide offer for the purchase of said land

from one G. II. and could have sold the same to said G. H. for the sum of . . . dollars, but that in consequence of the filing of said notice, and the aforesaid allegations of said complaint, the said G. H. refused to purchase the said land, whereby the plaintiff wholly lost the sale thereof to the said G. H., and has been prevented from effecting the sale thereof to any person, and has suffered damages in the sum of . . . dollars,

Wherefore, etc.

§ 1123. In application for laying out, widening, vacating, or extending street, alley, water-channel, park, highway, or other public place.

Form No. 379.

[Insert appropriate title of proceedings; as, for instance:] In the matter of the application of A. B., C. D., [etc.,

naming all petitioners] to the common council of
the city of. . . for the laying out of a certain
street in said city, and the condemnation of lands
therefor.

To whom it may concern:

.,

Notice is hereby given, that the undersigned petitioners, A. B., C. D., [etc., giving names of all], will on the . . . day of . . . 19 . ., file with O. P., Esq., city clerk of the city of . . . their application in writing to the common council of said city, for the laying out and opening of a certain street or highway in said city, extending from . . . to . . . [name termini], and praying that the following described parcels of land be taken and condemned for such purpose: [Describe the parcels with accuracy, as in a deed.]

Further notice is hereby given, that a correct map of the said proposed street or highway, and of the land to be affected thereby, is hereby attached to and made a part of this notice, marked Exhibit "A."

A. B.
C. D.

E. F.

CHAPTER XLIV.

ISSUES.

§ 1124. In general.-By the term "issues" is meant the points of difference between plaintiff and defendant. In an action there may be number of issues, each of which is vital and necessary to be tried to make out plaintiff's cause. They are integral parts of one whole, and if plaintiff fails to plead or prove each of these necessary parts, his action falls. Each is a link in the chain of circumstances which makes up in detail the whole case. It is therefore the better practice for an attorney to make a note of each step to be taken in the course of the trial before going into court, and to do that he must take for his guide the issue in the cause. This is necessary, because the parties to the action, if informed of the facts necessary to be proved to make out their case, need only to bring into court such evidence as will effect the purpose, and not, as is often done, be firing at random, apparently without object, and certainly without success. In most causes the real points will thus be greatly narrowed down, and it will require but a few witnesses or a comparatively small amount of evidence to sustain, the action, if there be merit in it, and hence counsel should know before going into court, as far as possible, what he wants to prove, and, second, if the whole. issue is made up of parts, to analyze them, and then make the proofs in the order in which they ought to be presented to the court or jury. In many cases it is of vast importance to present the proofs in logical order, which means the natural order, and this should be a point of no small interest to the practitioner; for, if logically presented, unprofessional minds, like jurors', will grasp the ideas with more readiness, and the judge or professional listener will comprehend the relevancy of the testimony without comment or explanation.1

The question as to the sufficiency of pleadings to raise an issue has been discussed elsewhere.2

§ 1125. Joinder of issue. The authorities generally define an issue to be a single, certain, and material point, issuing out of the Estee's Pl. & Pr. § 4613.

2 See ante, chapter X.

allegations or pleas, consisting regularly of an affirmative and negative; while an immaterial issue is one taken on an immaterial point, and not necessary to decide the action. An issue is joined where there is a direct affirmation and denial of the fact in dispute; and it makes no difference whether the affirmative or the negative is first averred. Where nothing is in fact controverted, no issue is joined. The law requires every issue to be founded upon some certain point, that the parties may come prepared with their evidence, and not be taken by surprise, and that the jury may not be misled by the introduction of various matters. Recovery can be had only upon the issues raised in the pleadings. But a variance is not material unless it misleads the adverse party. The pleadings having been made up, the cause is at issue. An issue arises when a fact or conclusion of law is maintained by the one party and is controverted by the other. Issues are of two kinds: 1. Of law; and 2. Of fact.1o

13

§ 1126. Issues of law. An issue of law arises upon a demurrer to the complaint or answer, or to some part thereof," and is tried by the court, unless referred by consent.12 A court cannot properly, even by consent of parties, pass upon questions not raised by the written allegations of the pleadings.1 Where an issue of law goes to only a portion of a pleading, the case may be put on the calendar for trial of the issue of fact, joined by other portions, without waiting for the decision of the former. Various illustrations of issues of law are as follows, to-wit: Account: What constitutes an account stated is a question raising an issue of law.15 Adverse possession: The facts to establish adverse posses

8 2 Burr. Law Dict. 99; Co. Lit. 126a. See 3 Bl. Com. 313; French Law, 336; Story's Eq. Pl. 1; Steph. Pl. 124; 1 Van Santv. Pl. 733; 1 Chit. Pl. 652.

4 Steph. Pl. 129; 1 Chit. Pl. 692; 2 Tidd's Pr. 921; Gould's Pl. ch. 6, 27. 5 Van Gieson v. Van Gieson, 12 Barb. 520.

6 Pardee v. Schenck, 11 How. Pr. 500; Deer Lodge County v. Kohrs, 2 Mont. 66.

7 Minor V. Mechanics' Bank of Alexandria, 1 Pet. 46, 7 L. Ed. 47. 8 Soden v. Murphy, 42 Colo. 352, 94 Pac. 353.

Chicago B. & Q. v. Pollock, 16 Wyo. 321, 93 Pac. 847.

10 Cal. Code Civ. Proc., § 588; N. Y. Code Civ. Proc., § 963.

11 Cal. Code Civ. Proc., § 589; N. Y. Code Civ. Proc., § 964; Or. B. & C. Codes, § 110; 3 Bl. Com. 314; 3 Steph. Com. 572.

12 Cal. Code Civ. Proc., § 591; N. Y. Code Civ. Proc., § 969.

13 Boggs v. Merced M. Co., 14 Cai. 279.

14 Palmer v. Smedley, 13 Abb. Pr. 185.

15 Lockwood v. Thorne, 11 N. Y. 170, 62 Am. Dec. 81.

sion are to be found by the jury, but what constitutes adverse possession is a question of law.18 Agreement: Whether letters which have passed between parties constitute an agreement, or whether an agreement between parties amounts to an extension of time for the performance of a former contract between them, and, if so, what time, are questions of law for a court, and not of fact for a jury.17 Assignment: The legal effect of an assignment.18 Carelessness: What facts and circumstances constitute evidence of carelessness.1 Compliance: Whether one claiming a discharge in insolvency has strictly complied with the provisions of the insolvent act is a question of law.20 Contract: Whether a contract has been rescinded or not, as whether the undisputed acts of parties amount to a rescission, 21 and the validity and effect of a contract, are questions raising an issue of law;22 but when the meaning is to be judged by facts aliunde, it is a question for the jury.23 Due diligence: Due diligence is sufficiently defined to enable courts to determine whether any given state of facts is sufficient to constitute it or not.24 Evidence: Admissibility of evidence is a question for the court;25 or of a witness objected to for interest;26 or whether a witness is competent; 27 or whether a paper is proper to be read:28 or whether evidence offered tends in any respect to make out fraud;29 or, in slander, if there is no dispute as to the facts, whether the testimony given by plaintiff was material to the point in issue.30 Fraud: When there is no dispute upon the facts, and the law upon those facts declares a transaction fraudulent, it is not a question for the jury.31 Grant: The construction of the

16 Macklot v. Dubreuil, 9 Mo. 477, 43 Am. Dec. 550; Bowie v. Brahe, 3 Duer, 35; Jackson v. Walker, 7 Cow. 637; Munro v. Merchant, 26 Barb. 383. 17 Luckhart v. Ogden, 30 Cal. 547. 18 Goodrich v. Downs, 6 Hill, 438; Sheldon v. Dodge, 4 Denio, 217; Cunningham v. Freeborn, 11 Wend. 240; Spies v. Boyd, 1 E. D. Smith, 445; Edgell v. Hart, 9 N. Y. 213, 59 Am. Dec. 532.

19 Gerke v. California Steam Nav. Co., 9 Cal. 251, 70 Am. Dec. 650.

20 Schloss v. His Creditors, 31 Cal. 201.

21 Healy v. Utley, 1 Cow. 345. Or its construction: Thomas v. Dickinson, 23 Barb. 431.

22 Chapin v. Potter, 1 Hilt. 366.

23 Gardner v. Clark, 17 Barb, 538. 24 Ophir Co. v. Carpenter, 4 Nev. 534, 97 Am. Dec. 550. See Carroll v. Upton, 3 N. Y. 272.

25 People v. Glenn, 10 Cal. 32; Gould v. Weed, 12 Wend. 12. Compare LaRue v. Rowland, 7 Barb. 107. See, also, Harris v. Wilson, 7 Wend. 57.

26 Tabor v. Staniels, 2 Cal. 240.

27 Reynolds v. Lounsbury, 6 Hill, 534; Scherpf v. Szadeczky, 1 Abb. Pr. 366; Prall v. Hinchman, 6 Duer, 351. 28 Tillou v. Clinton etc. Mut. Ins. Co., 7 Barb. 564.

29 Gage v. Parker, 25 Barb. 141; Erwin v. Voorhees, 26 Barb. 127.

30 Power v. Price, 16 Wend. 450. 31 Chenery v. Palmer, 6 Cal. 119,