Issue

Issue in United Kingdom

Definition of Issue

This is a term used in wills and probate matters.

Concept of Issue

The following is an old definition of Issue [1], a term which has several meanings:1, (verb) To send out: as, to issue a writ or process. A process is ” issued ” when made out and placed in the hands of a person authorized to serve it, with a bona fide intent to have it served. n. A causing to go forth: as, the issue of an order or writ, the issue of letters patent or letters testamentary. Compare Exire, Exit. Re-issue; re-issued. Refer, in particular, to a continuation of an original patent. whence (the word(s) which follow it are derivatives from the same root word) re-issuable. Whenever a patent is inoperative or defective, by reason of a defective or insufficient specification or claim of more than the applicant has a right to as new, if the error has arisen by inadvertence, accident, or mistake, and without deceptive intention, the commissioner of patents, on the surrender of such patent, shall cause a new patent to issue in accordance with the corrected specification. The surrender takes effect from the issue of the amended patent, and runs for the unexpired term of the original patent. But new matter may not be introduced. The surrender of valid patents, and the granting of re-issued patents thereon, with expanded or equivocal claims, where the original was clearly neither ” inoperative nor invalid, “‘and whose specification is neither “defective or insufficient,” is a great abuse of, the privilege granted, and productive of great injury to the public. A re-issue must be for the same invention, and, in judgment of law, is only a continuation ot the original patent. If, on comparing a re-issue with its original, the former appears on its face to be for a different invention from that described or indicated in the latter, it must be declared invalid. A re-issue can only be granted for the same invention which was originally patented. If it were other-wise, a door would be opened to the admission of the greatest frauds. Claims and pretensions shown to be unfounded at the time, might, after the fapse of a few years, a change of officers in the patent office, the death ot witnesses, and the dispersion of documents, be set up anew, and a reversal of the first decision be obtained without an appeal, and without any knowledge of the previous investigations on the subject. New light breaking in upon the patentee as the progress of improvement goes on, and as other inventors enter the field, and his monopoly becomes less and less necessary to the public, might easily generate in his own mind an idea that his invention was really broader than had been set forth in the specification of his patent. It is easy to see how such new light would naturally be reflected in a re-issue of the patent, and how unjust it might be to third parties who had kept pace with the march of improvement. By a curious misapplication of the law it has come to be principally resorted to for the purpose of enlarging and expanding patent claims. And the evils which have grown from the practice have assumed large proportions. Patents have been so expanded and idealized, years after their first issue, that thousands of mechanics and manufacturers, who had just reason to suppose that the field of action was open, have been obliged to discontinue their employments, or to pay an enormous tax for continuing them. The patentee has no rights except such as grow out of the re-issued patent. No damages can be recovered for any acts of infringement committed prior to the re-issue. The reason is, the original patent, which is surrendered, becomes extinguished by a re-issue. Whether there was an ” inadvertent ” mistake in the specification, is, in general, a matter of fact for the commissioner of patents to decide; but whether the application for re-issue is made within a reasonable time is a matter of law, which the courts may determine by comparing the re-issued patent with the original, and, if necessary, with the records in the patent office when presented by the record. A patentee who imposes words of limitation upon his claim, especially so when required by the patent office in taking out his re-issue, is bound by such limitations in subsequent suits on the re-issued patents. See Patent.

Alternative Meaning

(Verb)To put Into circulation; to emit, see, in this resource, the term: as, to issue bank notes, bonds, script. n. All of a class or series of like securities or instruments for the payment of money put forth at one time. 3, n. The disputed point or question. A single, certain, and material point, arising out of the allegations or pleadings of the parties, and generally made by an affirmative and a negative. When the parties come to a point which is affirmed on one side, and denied on the other, they are said to be “at issue.” All debate is then contracted into a single point, which must be determined in favor of one of the parties. Issuable. Permitting an issue to be framed: as, issuable matter, or plea; to plead issuably. Issue, exitus, is the end of all pleadings. It is upon a matter of law or of fact. An issue upon a matter of law is called a demurrer, see, in this resource, the term An issue of fact is where the fact only, and not the law, is disputed. When either side denies the facts pleaded by his antagonist, he usually “tenders an issue.” If the denial comes from the defendant, the form is “And of this he puts himself upon the coimtry; ” if from the plaintiff, the form is ” And this he prays may be inquired of by the country ” – a jury. Thereupon the other party subjoins ” And the said A does the like.” Which done, the issue is said to be ” joined,” both parties agreeing to rest the fate of the cause upon the truth ot the fact in question. Thus also in equity, the plaintiff may aver, in reply, that his bill is true, certain, and sufficient, and defendant’s answer the reverse, which he is ready to prove as the court shall award; upon which the defendant rejoins, averring the like on his side. Collateral issue. An issue upon an incidental matter. Feigned issue. As no jury is summoned to attend a court of equity, a matter of fact, strongly controverted, is directed to be tried at the bar of a court of law, upon a ” feigned ” issue. This is an action wherein the plaintiff, by a fiction, declares that he laid a wager with the defendant, and then re-avers the truth of the fact, and therefore demands the amount of the wager. The defendant admits the wager, but denies the truth of the fact; whereupon the issue is joined, which is directed to be tried out of chancery. This issue is also used in the courts of law by consent, to determine some disputed right without the formality of pleading, and to save time and expense. A frequent use is in tiie trial of issues devisarit vel non, see, in this resource, the term A feigned issue is a mode of procedure adopted from the civil law by courts of law as well as courts of equity as a means of having some question of fact arising incidentally, and to be made the foundation of an order or decree, determined by the verdict of a jury. It is called a “feigned” issue for the reason that its object is not the establishment of a legal right on which a judgment shall regularly follow, but the ascertainment by a formal issue of some issue of fact arising in another cause, and material to the decision of the latter. For convenience of trial the issue must be given the form of a common-law action, with appropriate pleadings, and an issue thereon; but, nevertheless, the nature and purpose of the issue give it Character as a feigned issue or otherwise, and not the form in which the issue is expressed. Formal issue. Framed according to rule; opposed to informal issue. General issue. Traverses anddenies the whole declaration, without offering any special matter whereby to evade it. Leaves everything open – the fact, the law, and the equity of the case. Special issue. Denies some one substantial point as decisive of the whole cause. Common general issues; nil or nihil debet; non assumpsit; non cepit; non detinet; non est factwm; not guilty; nul tiel record; nulla bona; plene administravit; rein en arreare, qsee, in this resource, the term Material issue. Framed upon a matter decisive of the question in dispute. Immaterial issue. Framed upon a point not decisive of the right. In equity practice, a material issue is an issue upon a fact which has some bearing upon the equity sought to be established. Matter in issue. That matter upon which the plaintiff proceeds by his action,and which the defendant controverts by his pleadings. 4, n. Issues: rents and larofits of realty: as, in the expressioh, “rents, issues, and profits.” 5, n. Heirs of the body; all ones lineal descendants indefinitely: as, in the expressions, issue of body, failure of issue, die without issue. In wills and deeds of settlement, while ” issue ” is construed to include grandchildren, “child “or “children ” is notj unless a contrary intent is clear. “Issue ”necessarily includes children; but “children ” does not include more remote issue. In a will, ” issue ” means, prima facie, the same as “heirs of the body,” and in general is to be construed as a word of limitation. But this construction will give way if there be on the face of the instrument sufficient to show that the word was intended to have less extended meaning, and to be applied only to children or to descendents of a particular class or at a particular time. in a devise, “issue” is a word of purchase or of limitation, as best answers the intention; in a deed, it is always a word of purchase. Issue of body. Is more flexible than ” heirs of the body; ” courts more readily interpret the former as synonymous with ” children ” and a mere description of persons. See Child; Descend; Die, Without issue; Failure; Heir; Shelley’s Case; Tail; Will, 2

Resources

Notes and References

  1. Meaning of Issue provided by the Anderson Dictionary of Law (1889)

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