for instance, fraud, or that any claim has been barred by the Statute of Limitations, or has been released."

Issues-The word issue,' exitus, from French issuer, to come out of, has divers significations at law, but here denotes "the point of matter issuing out of the allegations and pleas of the plaintiff and defendant in a cause." See Tomlins' law dictionary. "When in the course of pleading, the parties in a cause come to a point, which is affirmed on one side and denied on the other, they are then said to be at issue; all their debates being at last contracted into a single point, which must be determined either in favor of the plaintiff or the defendant. The issues concerning causes are of two kinds; upon matter of fact, and matter of law. An issue in fact is where the plaintiff and defendant have agreed upon a point to be tried by a jury: an issue in law' is where there is a demurrer to a declaration, plea, &c., and a joinder in demurrer which is to be determined by the judges." Ibidem.

Material proposition.-This new term seems to be an adaptation of the term material facts' in Rule 4, Order XIX of the R. S. C: Pleadings are to contain such facts alone and not the evidence by which they are to be proved: and in like manner issues must contain the material propositions' of fact and not also the evidence by which they are to be proved. See the notes below.

Must allege. Thus it is a material fact in an action on a contract made by letter, that the plaintiff sent a letter to the defendant, accepting the proposal. It is mere evidence of that fact to say that the plaintiff wrote the letter, and delivered it to his clerk who duly posted it. It is a fact material to the defence of son assault demesne, that the plaintiff struck the defendant, but to state that A. B., a bystander, saw the first blow struck, is evidence.

Frame and record. Upon this being done, it will be well to ask the pleaders on either side whether they accept the issues, and if they accept, to record the fact at the foot of the issue-paper.

After such a consent it will not be competent to either party to object on special appeal that a material issue was omitted. Mussamut Sahiba Monee v. Mudhooshoodun Singh, Marsh, 519.

The following is the form in which issues are framed and recorded' in the Madras Province :

"1st.-The plaintiff affirms, and the defendants deny, that, on or about the 30th day of June 1859, an account was stated and settled between the plaintiff and since deceased, whereby Rupees 39,000 on account of principal, and Rupees 2,298 on account of interest, were found to be due by the said to the plaintiff.

The first issue therefore is, whether there was any such statement and settlement of account, as is alleged by the plaintiff.

2nd. The plaintiff affirms, and the defendants deny, that they (the defendants) have possessed themselves of property of the said deceased, to an amount sufficient to cover the plaintiffs

demand.

The defendants admit that they have possessed themselves of property of the said to the amount of about 16,500 Rupees; but they affirm, and the plaintiff denies, that they have not possessed themselves of any property of the said beyond the amount

abovementioned.

The second issue therefore is, whether the defendants have possessed themselves of any property of the said

the amount admitted by the defendants as aforesaid.

The further hearing is fixed for the

beyond

day of 1863,

when both parties are required to have their witnesses in attendance at this court."

The Calcutta High Court Circular No. 23 of 1859 prescribes for adoption the following form :

In bar of suit arising on the plaint (or plaintiffs statement.)

1

2

3

Of fact.

The above issues were settled by the court at the hearing of this case on the

were orally examined

of

when the following persons

The case stands adjourned for the final hearing under Sec. 172, till the of, when both parties are required to have their witnesses in attendance at this court at 11 A. M.”

It will be seen from the above forms that, where there is a further or final hearing, the 'first hearing' will end with the settlement of the issues and consequent adjournment of the hearing. The judges notes of the proceedings at the first hearing will show, in proper sequence, the appearance or non-appearance of each of the parties, the tender and acceptance or rejection of written statements, the examination of the parties or their representatives, the production, inspection and admission or rejection of documents by the court, and admission or denial of the same by parties, and finally the settlement of issues and adjournment of the hearing.

Shall try those issues first.-This corresponds with Rule 2, Order XXXIV of the R. S. C. which provides for the court or a judge ordering a special case to be stated before deciding questions of fact.

Allegations from which issues may be framed.

147. The Court may frame the issues from all or any of the following materials:

(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties or persons;

(b) allegations made in the plaint or in the written statements (if any) tendered in the suit, or in answer to interrogatories delivered in the suit; (c) the contents of documents produced by either party.

It is stated in the Final Report:-"We have added (Sec. 147) to the list of materials from which issues may be framed, allegations made in answer to interrogatories delivered in the suit."

Made on oath,-Under Sec. 118.

148. If the Court Court may examine witnesses or docu

ments before framing

be of opinion that the issues cannot be correctly framed without the examination of some person not before the Court, or without the inspection of some document not produced in the suit, it may adjourn the framing of the issues to a future day, to be fixed by the Court, and may (subject to the rules contained in the Indian Evidence Act) compel the attendance of any person or the production of any document by the person in whose hands it may be, by summons or other process.

issues.

149. The Court Power to amend, add and strike out is

sues.

may at any time before passing a decree amend the issues or frame additional issues on such terms as it

thinks fit, and all such amendments or additional issues as may be necessary for determining the controversy between the parties shall be so made or framed. The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.

The discretionary powers conferred on the courts by this section are in terms as ample as powers can be. On what general principles they should be exercised, it is not yet easy to ascertain.

The controversy. That is, I apprehend, the question fairly raised by the substance of the plaint on the one hand and the answer of the defendant on the other hand. But where a certain cause of action clearly is disclosed by the plaint and the plaintiffs statements, it would be irregular and unjust to amend the recorded issues for the benefit of the plaintiff on it appearing, at the final hearing, from the evidence adduced by the plaintiff or otherwise, that the plaintiff has indeed a 'right' (jus), but one wholly different from that which he has previously put forward as his right. The decision in Ramasami Ayyan v. Ramu Mupan, 3 H. C. R., 372, may be turned to for illustration of this principle.

Where four plaintiffs sued jointly as being partners, and it appeared from the evidence that two only of the four, were partners, and the court amended the issue, and raised the question whether the four plaintiffs were partners, it was held that to amend the issue, and not the plaint, was the proper mode of amending such errors in the plaint. To do so was necessary for the purpose of determining the real question in controversy as to whether the plaintiffs or any of them were entitled to recover. E. I. Railway Company v. Jordan, 4 B. L. R., O. C., 97.

In Arbuthnot v. Betts and others, 6 B. L. R., 273, the plaintiffs sued the defendants for damages for breach of contract, alleging in

their plaint that they had agreed to sell, and the defendants to purchase, certain indigo seed, but the defendants had refused to take delivery, although the plaintiffs were ready and willing to deliver the same. Upon the evidence of the plaintiffs it appeared that there was no contract as alleged in the plaint, but the contract, as stated by them, was that they (the plaintiffs) were to purchase seed as agents for the defendants. The judge dismissed the suit, on the ground that the plaintiffs were bound to prove their case as stated in the plaint. Held, that the suit ought not to have been dismissed on that ground. The issues raised admitted of the true question being tried, viz., whether, under the circumstances, the defendants were liable to pay the price of the seed; and, if they did not, the court ought to have amended the issues, or framed additional ones. The object of the plaint is merely to bring the matter in dispute before the court, but it is for the court, upon the statements before it, to determine the real issue between the parties.

Questions of fact or law may by agreement be stated in the form of an issue.

150. When the parties to a suit are agreed as to the question of fact or of law to be decided between them, they may state the same in the form of an issue, and enter into an agreement in writing

(a) that upon the finding of the Court in the affirmative or the negative of such issue, a sum of money specified in the agreement, or to be ascertained by the Court, or in such manner as the Court may direct, shall be paid by one of the parties to the other of them, or that one of them be declared entitled to some right or subject to some liability specified in the agreement,

(b) that upon such finding some property specified in the agreement and in dispute in the suit shall be delivered by one of the parties to the other of them, or as that other may direct, or

(c) that upon such finding one or more of the parties shall do or abstain from doing some particular act, specified in the agreement, and relating to the matter in dispute.

The provisions of the Code relating to the determination of issues stated by the parties themselves, without having recourse to a settlement at the first hearing of the suit, are taken from the Secs. 42-48 of the Common Law Procedure Act, 1852. Before that Act a special case could be stated for the opinion of the court, under the 3 and 4 Will. 4, c. 42, s. 25, only after the parties had joined issue. Order XXXIV of the R. S. C., following the equity practice under Turner's Act (13 & 14 Vict. c. 35), permits the parties to an action, after writ issued, to state questions of law arising in the action in the form of a special case for the opinion of the court;

and