Feigned Issue

In practice

An issue produced in a pretended action between two parties, for the purpose of trying a single question of fact, which it becomes necessary to determine in the progress of a cause. It is frequently directed by a court of chancery, to determine the fact of adultery, of the validity of a will, &c., and sometimes, though rarely, by a court of law. The issue is produced upon a declaration and plea; the plaintiff declaring, by a fiction, that he laid a wager of so much with the defendant, that a certain fact was so, and then avers that it is so, and therefore demands the sum wagered; the defendant admitting the feigned wager, but denying that the fact is so. Issue is thereupon joined as to the fact, and brought to trial like any other issue of fact, and the verdict of the jury determines the question.

3 Bl. Com. 452.

This has sometimes been defined a fictitious issue. The fiction however is not in the issue, which is real, as are the pleadings; but in the action which is supposed to be brought, and in the state of facts (the wager,) upon which it is founded, which in reality have no existence.

By the English statute 8 & 9 Vict. c. 109, s.

19, any question of fact may now be referred to a jury, by any court either of law or equity, in a direct form, in lieu of a feigned issue.

4 Steph. Com. 26.