— Also termed fictitious issue.
“The chancellor’s decree is either interlocutory or final. It very seldom happens that the first decree can be final, or conclude the cause; for, if any matter of fact is strongly controverted, this court is so sensible of the deficiency of trial by written depositions, that it will not bind the parties thereby, but usually directs the matter to be tried by jury …. But, as no jury can be summoned to attend this court, the fact is usually directed to be tried at the bar of the court of king’s bench or at the assises, upon a feigned issue. For, (in order to bring it there, and have the point in dispute, and that only, put in issue) an action is feigned to be brought, wherein the pretended plaintiff declares that he laid a wager of 5l. with the defendant that A was heir at law to B; and then avers that he is so; and therefore demands the 5l. The defendant allows the wager, but avers that A is not the heir to B; and thereupon the issue is joined …. These feigned issues seem borrowed from the sponsio judicialis of the Romans: and are also frequently used in the courts of law, by consent of the parties, to determine some disputed rights without the formality of pleading ….” 3 William Blackstone, Commentaries on the Laws of England 452 (1768).
