case Colvin against fletcher a plea in disability of the plaintiff can be  plead after a general imparlance S c stram debt upon bind against the  defendant who after a general imparlance plead the statute of Geo saint c S  and recusancy in disability of the person of the plaintiff and therefore pray  quod speech predicta to stay behind ind without die it be object upon a  demurrer to this plea that it ought not to be allow after a imparlance because  plead in disability be dilatory and therefore shall be plead at first and to  prove this the case in the margin be cite   light Mod lev lev vent Yelv Lutw a  to which it be answer that the reason of those case do not come up to the  present case because those be all plead in abatement of the writ and in such  case if it be abate the plaintiff may have a new writ but this be in  disability of have any writ at all during his recusancy and therefore a second  objection be that this plea be ill the plea begin quod predictus the defendant  ad bill be Self to express grief responders non debet note to former edition b  for that it conclude prout to stand open de think over for the conviction of  recusancy be at the session which be a record of another court it shall be  immediate plead with a profert hic in curian sub pede seal because the plea be  but dilatory unless the record be in the same court for the defendant shall  not have a day allow he to bring in the record Lutw Lutw   light a b light ten  sect bro Abr title record pl lev Rep Com Rep pl where a plea of a recusant  convict be adjudge ill for this exception c in answer to this objection it  will be say that the record of a conviction be certify into this court and be  of record here need not be plead sub pede seal but the word of Geo saint c be  if the person to who the oath shall be so tender shall neglect or refuse to  take the same such justice c shall certify the refusal thereof to the next  quarter session of the county c and the say refusal shall be record among the  roll of that session and shall be from thence certify by the clerk of the  peace c into the court of chancery or king bench c there to be record c and  every such person c shall from the time of his refusal be adjudge a popish  recusant convict so that the record remain at the session and the refusal only  be certify here beside this certificate be make by the clerk of the peace be  traversableMoor Leon d for he be no more than a ministerial officer and  therefore it be not a record to conclude the judgement of this court and if  the fact contain in the certificate may be deny it be but reasonable to plead  the certificate sub pede seal modern report to which it be answer that a  record in the same court where it be plead modern report er p need not be show  sub pede seal   light b e which I admit to be necessary where the record  remain in another court the statute Geo c create the disability from the  refusal of the oath and not from the time of the refusal record the record be  only evidence of the refusal it do not create the disability so that the  present case be very different from the case quote for there the record be the  disability as the judgement in the case of a outlawry which be the record if  the certificate make by the clerk of the peace to this court of the refusal  which be record at the session be traversable so that the fact therein contain  lie open to be examine the consequence will be that there be no need to plead  the record sub pede seal since the certificate be no record only a evidence  plead the record sub pede seal when the record do not create the disability  will vitiate the plea when a defendant plead another action depend he never  plead the record sub pede seal because other fact be necessary to be prove as  that the action be bring for one and the same cause if the record make the  disability yet it do not remain in the session but be transmit into this court  as effectual as if it have be remove by certiorari since the Act supply a  certiorari it be true the clerk of the peace in certify this record be but a  ministerial officer but it be not a material objection for the plaintiff to  say so because he have a opportunity to traverse it and to try the fact but  here the plaintiff by demurrer to this plea have own the fact which otherwise  ought to have be prove by the record in the case of fitzharris v Boiun lev a  the plaintiff be to prove a arrest and because he do not produce the writ the  defendant demurrer upon the evidence and it be adjudge that the writ ought to  have be produce in evidence but the demurrer confess the arrest be a matter of  fact though to be prove by a matter of record but this be deny by the counsel  for the plaintiff who argue that by the demurrer the fact be not confess for  the plaintiff demurrer because the defendant have not plead the fact and not  to the fact plead the three objection be that the statute James c give the  session power to make proclamation against recusant to render themselves c  which if they do not and that the default be record that shall be take for as  sufficient a conviction as a trial by verdict now the defendant have not plead  that any such default be record at the session therefore this be in a criminal  case wherein the utmost certainty be require this plea can be good without  pursue all the circumstance require by the Act the answer be that the statute  require the conviction shall be certify into the exchequer with such  convenient certainty that the court may award process thereon and the  defendant have plead that it be certify there which can not have be do unless  the default have be record at the session another objection be that this plea  be wrong conclude for it be that the defendant eat ind without die when it  shall be therefore speech prd to stay behind without die until what time for  the disability be no absolute bar but temporary only until conformity as a  outlawry plead in disability of the person ought to conclude si to answer  debet for if after such plea the plaintiff obtain his charter of pardon or  reverse the outlawry the defendant shall answer for then the plaintiff be  restore to the law for the disability do not abate the writ it only disable  the plaintiff until a pardon or reversal of the outlawry   light b a it be the  same in the case of a excommunication which do not abate the writ but only  disable the plaintiff from proceed until be purchase letter of absolution    light b   b to which it be answer that the commencement and conclusion of the  plea be both proper for a plea in abatement though until what time be omit yet  the plea be good for in many precedent of the like nature there be the same  omission unde petit judgment si to answer debet be the legal conclusion of a  plea in disability of the person and will be sufficient without any further  prayerCo light a c when a plea in abatement begin proper as such it will be  good though the defendant conclude it with pray a improper judgement for the  court be to give a proper judgement lev raze Ent lev Ent Thompson Brownl e r d  modern report er p in the case of Bilson v cross the common plea in Hilary  term whether e a action of replevin be bring in the common plea for take a  mare the defendant plead first in another place and conclude with a petit  judgment et return horse prfat the plaintiff take issue on the take in another  place the defendant demurrer and conclude unde ut prius petit judgment et quod  narrative empty and judgement in the common plea for the plaintiff and on a  writ of error it be insist that there be a discontinuance the plea be in bar  and the demurrer in abatement but the judgement be affirm the demurrer be in  bar for unde ut prius petit judgment be sufficient and the rest which follow  be reject as surplusage and judgement final be give in the common plea the  plea conclude in bar though the matter plead be matter of abatement Eyre  justice quod narrative empty be a conclusion in bar the precedent in raze Ent  b be a plea of excommunication and conclude quod speech to stay behind until  what time the five objection to this plea be that the defendant do not set  forth that the plaintiff have not take the oath since the king accession to  the crown for if in fact he have take they since that time then the statute do  not extend to he therefore this matter ought to have be special set forth like  a precedent condition by he who be to have the benefit of it videlicet that  the plaintiff be a person on who the Act attach modern report for by the  statute Geo c it be enact that all person who shall take and subscribe the  oath in the manner appoint by that Act be indemnified from any penalty and  incapacity c incur by any former neglect this may be compare to a plea of a  pardon which must aver that the defendant be a person not except in the Act  post foster c l hawk p c ch S a a clause come by way of proviso or exception  as this do be the same in respect of plead the answer be that by the next  clause in that statute it appear that this do not extend to any person other  than such who entitle themselves to any office or place of trust for those  only be indemnified from any incapacity incur and may bring any action if they  have take the oath since the king accession to the crown beside the plaintiff  ought to show that he be except by virtue of the proviso the defendant have  swear that he be include within the purview of the Act say adjournatur and in  easter term in the eleven year of George the first the court grant a to answer  ouster