Definition
A feigned issue is a procedural device used historically in courts of equity — and occasionally at common law — by which a disputed question of fact was submitted to a jury for determination by means of a fictitious or simulated action between the parties. Because equity courts historically had no standing jury, they could not resolve disputed facts through jury trial. To overcome this limitation, the court would direct the parties to "feign" — that is, to construct — a collateral action at common law in which the factual question was embedded, allowing a jury at common law to return a verdict that the equity court could then adopt.
The fictional structure of the action typically took the form of a feigned wager. The plaintiff would declare that the parties had bet a nominal sum on the truth of some factual proposition — for example, whether certain goods belonged to the plaintiff. The defendant would admit the wager but deny the underlying fact. This contrivance transformed a real equity dispute into a technically cognizable common-law action, and the jury's verdict on that fact bound or guided the equity court's subsequent decree.
The feigned issue was distinct from a genuine issue of fact arising in a real lawsuit: it rested on no actual legal controversy between the parties at law, but was manufactured solely to secure the constitutional or historical right of jury trial for a factual determination the equity court needed to make.
Common Language
Modern common usage (Wiktionary): "An issue produced in a pretended action between two parties for the purpose of trying before a jury a question of fact which it becomes necessary to settle in the progress of a cause."
Historical common usage (Webster's 1913): Not separately defined; "feigned" carried its ordinary sense of simulated or fictitious, and "issue" its ordinary sense of a point in dispute.
The Wiktionary entry tracks the legal definition closely enough that no meaningful gap exists between common and legal usage here — the term is pure legal jargon that never acquired an independent life in ordinary speech. Its components ("feigned," "issue") are common English words, but the compound has no common-language meaning apart from its procedural legal sense.
Common Confusion
Feigned issue is sometimes confused with a directed issue or a reference to a master. A directed issue (or issue directed by equity) is closely related — equity courts might "direct" a feigned issue to be tried at law — but the direction itself is the court's order, while the feigned issue is the procedural mechanism constructed to carry that order out. Similarly, referring a factual question to a master in chancery was an alternative to directing a feigned issue; the two served overlapping functions and were sometimes used together, but a reference to a master involved no jury and no fictitious action.
Why It Matters in Research
This term is essentially extinct in modern practice. The merger of law and equity under the Federal Rules of Civil Procedure (1938) and equivalent state reforms eliminated the structural problem the feigned issue was designed to solve: once a single court can decide both legal and equitable questions and empanel a jury for legal issues embedded in equity proceedings, there is no need to construct a pretend lawsuit. Researchers will encounter feigned issues almost exclusively in pre-merger materials — English and American chancery reports, equity pleading treatises, and cases before the mid-twentieth century.
Several traps await the historical researcher. First, because the action was fictitious, case reporters sometimes omit the underlying equity matter entirely, recording only the feigned action at law. The reader may not realize a larger equity cause lies behind the reported case. Second, the pleadings in a feigned issue follow common-law forms but address equity-driven questions; analyzing the pleadings as if they were ordinary common-law pleadings will produce confusion about the parties' real dispute. Third, the nomenclature is inconsistent across periods and jurisdictions: some sources call the device an "issue out of chancery," a "directed issue," or simply a "trial at bar," which may or may not refer to the same mechanism.
Corpus researchers should note that feigned issues appear with particular frequency in probate and testamentary contexts (will validity), matrimonial causes (adultery), and property disputes — areas where equity had jurisdiction but factual resolution was contested. The device also appears in discussions of the constitutional right to jury trial, where courts and commentators debated whether equity's power to direct a feigned issue satisfied or circumvented that right.
Historical Dictionary Support
The four source dictionaries agree on the core definition: a feigned issue is a procedural fiction directing a question of fact from an equity court to a jury at law. The differences among them are instructive.
Black's is the most succinct, correctly identifying the "supposititious wager" as the structural mechanism and citing Blackstone's Commentaries (3 Bl. Comm. 452) — the most reliable primary source for understanding the device in its English common-law context. Bouvier's is the most complete procedurally, emphasizing that a "series of pleadings was arranged between the parties, as if an action had been commenced at common law upon a bet" — capturing the full fictional scaffolding that surrounded the device. Rapalje & Lawrence is the most analytically precise, drawing attention to a distinction that the others elide: the feigned issue is not simply a false issue but "a true issue raised by means of a fiction." The underlying factual dispute is real; only the legal vehicle in which it travels is manufactured. Burrill's is useful for its enumeration of specific subject matters — adultery, will validity — where the device was most commonly directed.
None of the historical dictionaries adequately explains the procedural consequences of a feigned verdict or the degree to which the equity court was bound by the jury's finding, a question that was disputed in practice and that Blackstone himself addressed with some ambiguity.
Jurisdictional Note
The feigned issue originated in English chancery practice and was transplanted to American equity courts. Its use varied by state depending on how robustly equity was institutionalized as a separate jurisdiction. In states that early merged or never fully separated law and equity, feigned issues were rare or unknown. The device became practically obsolete in federal court after 1938 and in most states by the mid-twentieth century.