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BOOK VII,

OF PROCEEDINGS BETWEEN ISSUE AND TRIAL.

CHAPTER I.

OF JOINDER OF ISSUE AND ITS GENERAL CONSEQUENCES.

The pleadings having thus been brought to a close, issue between the parties is now definitively joined, and ready for trial.

The issues so joined are thus defined by the Code, in sections 248 to 251 inclusive :

§ 248. Issues arise upon the pleadings, when a fact or conclusion cf law is maintained by the one party and controverted by the other. They are of two kinds :

1. Of law; and
2. Of fact.
$ 249. An issue of law arises,

1. Upon a demurrer to the complaint, answer, or reply, or to some part thereof.

$ 250. An issue of fact arises,

1 Upon a material allegation in the complaint controverted by the answer; or,

2. Upon new matter in the answer controverted by the reply; or,

3. Upon new matter in the reply, except an issue of law is joined thereon.

$251. Issues both of law and of fact may arise upon different parts of the pleadings in the same action. In such cases, the issues of law must be first tried unless the court otherwise direct.

In Geisson v. Geisson, 1 C. R. (N. S.) 414, it was held that a sufficient issue was taken by an answer averring payment of a promissory note sued upon, without any reply being put in; and the following definition of an issue is given: “An issue is joined, where there is a direct affirmation or denial of the fact in

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dispute; and it makes no difference whether the affirmative or the negative is first averred."

It will be seen that, by the above clauses, three distinct species of issue are created :

1. The issue of law pure: arising where the defendant demurs alone to the complaint without answering it, or where, in like manner, a pure demurrer to either answer or reply is taken, in the subsequent stages of the action.

2. The issue of fact: where the defendant simply answers the complaint, without taking any separate objection in law thereto, or to any part thereof; and,

3. The mixed issue: where the defendant demurs to part and answers part of the complaint, or demurs thereto by answer, in respect of latent defects; or where, in like manner, the reply demurs in part to the answer, and alleges new matter in avoidance as to the residue.

The issue of law being complete upon the pleadings, no preparation is necessary for the purpose of bringing it to trial, except the ordinary proceedings of noticing and setting down the cause.

In issues of fact, however, or mixed issues, various preliminary proceedings may be required, before the cause is in a fit state for submission to the court or jury; to the consideration of which, the chapters immediately succeeding will be devoted.

Though belonging more peculiarly to that portion of the work which treats of Trial, the case of Warner v. Wigers, 2 Sandf. S. C. R. 635, may be here noticed, as applicable to the provision that the issues of law shall be first tried, unless the court shall otherwise direct. The superior court there held that, where the issue of fact had been actually tried before the issues of law, without objection at the time, and on regular notice by both parties, it was to be deemed as having been first tried by order of the court; and the future practice of that tribunal was then announced to be as follows, viz. :-“ That whenever a cause was moved on the trial calendar, in which there was an issue of law pending, the court would then determine whether the issue of fact should be first tried, or not, and it should not be necessary to obtain a previous order on the subject.”

Another observation may be made with respect to mixed issues. In the case of demurrer by answer, it is possible that

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the allegations on which the demurrer is founded, may either be admitted, or be omitted to be denied by the plaintiff. Under these circumstances, it might well be contended that a pure issue of law arises in substance, and that such issue ought to be tried as such in the ordinary form, and before any other issues of fact which may have been joined by other parts of the pleadings, the intervention of a jury being no longer necessary to determine the points of fact on which the objection taken arises. The question does not appear as yet to have become the subject of decision, but probably it would be so held. If, on the contrary, the facts on which the demurrer arises are controverted, a conjoint trial of the mixed issues of law and fact seems inevitable. In The Farmers' Loan and Trust Company v. Hunt, 1 C. R. (N. S.) 1, (a case where the objection raised was the pendency of a cross action for relief, which the defendant was entitled to claim under his answer as put in) it was considered that a reference to inquire whether the two proceedings were for the same cause, agreeable to the former chancery practice, would be the proper course. The point was not, however, directly decided, the motion having been denied on other grounds. This conclusion is supported by Groshons v. Lyons, 1 C. R. (N. S.) 348, where the same doctrine is held with reference to the defence of another action pending, set up by answer.

In addition to the above, another description of issue may be noticed, i. e., issue upon a collateral fact, not joined upon the pleadings, but triable by express order of the court, in place of the feigned issue under the former practice. The provision of the code in this respect is contained in section 72, and runs as follows:

§ 72. Feigned issues are abolished; and, instead thereof, in the cases where the power now exists to order a feigned issue, or when a question of fact, not put in issue by the pleadings, is to be tried by a jury, an order for the trial may be made, stating, distinctly and plainly, the question of fact to be tried, and such order shall be the only authority necessary for a trial.

This form of issue is peculiarly applicable in divorce cases. See Rules 71, 72, and 73 of supreme court.

In cases not falling under section 253, and therefore primarily triable by the court, a special issue of an analogous nature may be obtained. See Rule 74.

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In this case, a motion must be made for the purpose, within ten days after issue joined, and the court or judge may then settle the issues, or refer it to a referee to do so, as there prescribed. When once joined, this form of issue is triable in the ordinary manner.

Before an issue of fact, either simple or mixed, can advantageously be brought to trial, several interlocutory proceedings may often be necessary or advisable. They may be divided into three general classes :

1. Proceedings with a view to bring on the trial of the issues joined, at once, without going through the ordinary forms.

2. Proceedings with a view to the more convenient or advantageous trial of those issues, in the ordinary mode.

3. Proceedings with a view to the preservation of the subject matter of the controversy, pendente lite, or to the satisfaction of admitted portions of the plaintiff's demand :

Which will, accordingly, be treated of in the above order.

Before proceeding, however, to the consideration of the matters above proposed, a measure peculiarly applicable to this stage of the action may be mentioned, i. e., the consolidation of causes, where more than one are pending in respect of the same subject matter.

This proceeding is one under the old practice, and the works on the latter should be accordingly referred to. The statute law on the subject will be found in article IV., title VI., chap. VI., part III. of the Revised Statutes, sec. 36 to 38 (2 R. S. 383). These sections give power to any court, at its discretion, to order the consolidation into one action of several pending in it between the same parties, for causes of action which may be joined : a special power being given to the Supreme Court, under similar circumstances, to consolidate within its own jurisdiction, any suits pending in other tribunals, for the same subject matter with that already before it.

The mode of application for this purpose will, of course, be by motion, on the usual notice served upon all parties affected by the proposed consolidation. The following recent cases appear in relation to, or connected with, the subject.

A motion of this description cannot properly be made, until issue has been joined in all the different actions sought to be consolidated, and until the time allowed to the plaintiff to amend his complaint has expired.—Le Roy v. Bedell, 1 C. R. (N. S.) 201.

Although the plea of the pendency, in another State, of another action for the same cause, is bad, and will not avail the defendant, (see Burrowes v. Miller, 5 How. 51,) yet the latter is not entirely without remedy under these circumstances. In Hammond v. Baker, 3 Sandf. S. C. R. 704, 1 C. R. (N. S.) 105, it was held that, although the court could not enjoin the plaintiff, as being a resident of a foreign State, from prosecuting an action in the courts of that State, (which power he was evidently abusing,) yet that it might and ought to prohibit the use of its process and proceedings, in the mode practised by the complainant.” “He must suspend his suit here or there ;” and an order was made accordingly, compelling him to elect in which cause he would proceed, proceedings to be stayed in the other.

The principle of compelling the defendant to elect, was extended in The Farmers' Loan and Trust Company v. Hunt, 1 C. R. (N. S.) 1, and Fabricotti v. Launitz, 3 Sandf. S. C. R. 743, 1 C. R. (N. S.) 121, to the case of a party seeking to avail himself of matter pleaded by way of recoupment, and in respect of which he had likewise brought a cross action. It was decided that, on a proper application, (which it was held, in the former case, ought to be made in the cross action,) he might be put to his election, either to proceed in his suit, or to confine himself to his recoupment. “ If he elect the former, then he may be prohibited from setting up the matter in this suit; if the latter, then the proceedings in the former action may be stayed."

A similar liberal application of the discretionary powers of the court has been made under the following circumstances : Where three suits were brought against the same defendant, under circumstances in which the decision of one would determine the whole issue in all, except only the measure of damages, the court ordered the two last to be stayed until the decision of the first, the defendant stipulating, if he failed therein, to contest only the question of damages, in the two others.- McFarlan v. Clark, 2 Sandf. S. C. R. 699.

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