beal vers Simpson bailiff of the liberty of pomfret S C Lutw plead Lutw post  vol p a temporary administrator must in action bring by he show that his  administration continue case a for escape the plaintiff declare as  administrator to I S durante minoritate of a which a be yet within age that b  be in the custody c of the defendant be permit he to escape the three day of  February the defendant plead that the say a be in his custody a habeas corpus  issue out of this court in Hilary term returnable in Trinity term which habeas  corpus be deliver to he before the escape be by virtue thereof such a day  before the return thereof take the say b out of prison and carry he to  Westminster and there deliver he in custody to the fleet c the plaintiff reply  by protestation that the say habeas corpus be not deliver to the defendant  before the say b be take out of prison and plead that a habeas corpus issue in  Michaelmas term returnable the first day of Hilary term next follow but the  defendant do not take the say b out of prison by virtue of that writ but after  the return of the say writ the defendant without the plaintiff knowledge take  the say b out of prison and he be out of prison the defendant by covin procure  another writ of habeas corpus a debt vide Lutw post vol p Lord Raymond er p to  be issue testae before which issue out returnable in Trinity term and by fraud  and by colour of that writ sue out by fraud the defendant take the say b out  of prison without hoc that the say b be take out of prison army of the former  writ the defendant demurrer gold sergeant argue that the declaration be not  good because the plaintiff declare as administrator durante minoritate Lord  Raymond of a and say that king be yet within age but do not say that he be  within the age of seventeen year for at such age his administration cease and  within age general shall be intend the age of twenty one year and then a may  be within the age of twenty one year and yet more than seventeen and then the  plaintiff have no authority so that the plaintiff have only a particular  authority for a certain time he ought to show that it be continue as a tenant  pur auter vie ought to show that beneficiary and vie be not dead and there be  a difference between a plaintiff and the defendant for the plaintiff ought to  entitle himself by show particular the age of the executor where he sue in his  right but where a action be bring against such a executor there the plaintiff  have no need to show it because he be a stranger to the executor age but find  a man meddle in the administration be sufficient cause for he to bring his  action against he cro Elizabeth cro James Yelv hob side the traverse be not  good it be that the defendant do not take the say b out of prison army short  catalog prediction for b it be a negative pregnant anger v Hutton pasch car  B R rot but in this case there shall not have be any traverse because the  plaintiff have confess and avoid the first writ and their he ought not to take  a traverse to it the defendant in this case be not estopped by the testae of  the writ but may have show that it be sue after the time of the testae of it  and the plaintiff in this case shall have rely upon the fraud for by this  traverse he have tie the defendant to join in it and have not give he any  opportunity to answer and show the special matter when the writ be first sty  out Wyott sergeant for the plaintiff argue e contra Powell justice the  difference where the plaintiff or defendant be stranger to the executor within  age as to the show of the executor age be ground upon great reason because  privy ought to show their authority but stranger to it can roll Abr and for  this reason the plaintiff in this case be privy to the executor within age  ought to show his age and if he do show it and do not aver it sufficient it be  not good upon demurrer and it be not aid by verdict here but the question be  in this case whether the defendant have not aid this defect by plead over  other matter and not rely upon this deficiency of the declaration for he have  admit by his plea that the plaintiff be a person able to bring the action in  Pigot case cro Elizabeth   the defendant plead a plea as in this case but  there be a ill averment there that the executor be not twentyone and a ill  averment be worse than the omission of a averment or a uncertain averment and  for this reason he take it that though there be no Lord Raymond averment in  this case yet the defendant plea will have aid it and as to the traverse he  think that the army pron  interrog  be traversable Edward when a matter of law  be only comprise in the army pron  interrog  then it be not traversable Plowd  but matter of fact in the army pron  interrog  be traversable h and admit in  foster and jackson case in hob which in probability will not have be admit  there the case be so great debate if it have be think material and in sand it  be the opinion of sander that army pron  interrog  be traversable it be not  any negative pregnant because all be admit but only the take out of prison by  virtue of the writ Treby chief justice as to the first exception he agree the  difference between a stranger and a privy to the executor and it be a defect  which be not aid but by verdict and under age shall be intend under the age of  twentyone roll Rep but the defendant by plead over have take away this  intendment have by his plea admit he able to maintain the action and by this  reason only the declaration be make good where at the beginning of itself it  be not good as to the traverse he think it to be ill because army pron   interrog  be not traversable after demurrer it be ill but it be good after  verdict which be a answer to foster and jackson case hob for the say case be  after verdict be aid as all perplex and improper issue be but in this case  there be a special demurrer and cause show that the traverse be not good but  contain double matter c and a r dal Mod Mod d send for more Plowd a   Litt a b  post Q v b vide cro James pl Lord Raymond er p this traverse will be intricate  and contain multiplicity of matter videlicet of fact and of law and for that  reason it can not be put in issue to be try by the jury which be his chief  reason against it for army of such a writ be only that which the law say and  expound upon the writ as if a writ be deliver to the sheriff where the party  be in his custody it be matter of law whether the party be in custody in  virtue of that writ by the delivery of it but whether there be any such writ  or no or whether it be deliver or not be matter of fact and after such fact  agree in the affirmative then be the matter of law whether the party be in  custody army of it   a there the matter be not traversable inasmuch as it be  mere matter of law and nothing of fact in the case and if army pron  interrog   be traversable then a the plead of the statute of use that army pron   interrog  a man be possess or seize may be traverse which be a mere effect of  the law hob and sand be only case where the point pass sub silence but sand be  a judgement in point a per quod be not traversable and there be no difference  between per quod and army pron  interrog  in this case the traverse ought to  have be Lord Raymond upon the delivery of the habeas corpus and as to what be  say by gold that the defendant ought to have have a opportunity to show that  the writ of habeas corpus issue out at another day after the testae of it he a  do not know that it be ever resolve that it be averrable that a writ issue out  contrary to the testae of it though it have be oftentimes attempt and dispute  gold sergeant there be a difference between writ which be to punish wrong and  those which be in advancement of right also a man can say quod breve to flow  out at another day contrary to the testae of it but pursue to be the writ not  before another day may be plead hut roll Abr Treby chief justice admit that  one may say quod pursue to be a writ at another day than it bear testae but  not that the writ to flow out at another day in this case the traverse ought  to have be that the party be take out of the prison before the writ deliver to  he Powell justice but then it may be a question whether the sheriff can  justify after the testae of a writ before it be deliver to he and levinz  sergeant who be not in the cause say that it be adjudge that he may justify  before the writ deliver to he but Treby chief justice deny that and sand agree  at another day in this term the judge give judgement in this case Powell  justice the time of the issue of the writ be traversable there be no confess  and avoid of the writ mention in the plea for the plaintiff show that there be  no such writ but another writ sue out after it he may in this case have  traverse the delivery of the writ that be allege by the defendant but he have  not traverse it but the take out of prison army of the writ and there be two  thing allege which be traversable it be at the plaintiff election to traverse  the one or the other he confess that general the army of a writis matter and  inference of law only and then not traversable but matter of fact may depend  upon it and then it be traversable as in this case the take out of prison and  for that reason it be here traversable and in some case it may be that nothing  but only the army of the writ be to be traverse as if two writ be deliver to  the sheriff against a one at the suit of b returnable the first return of  Hilary term and the other at the suit of d returnable the last return of the  say term and d procure a warrant upon his writ upon which a be arrest after  the return of the writ of b and then give a bailbond for his appearance and in  a suit upon this bailbond Lord Raymond a e plead that he be arrest upon the  writ of b returnable the first return of the term and that a he give the say  bailbond after the return of the say writ by which it be void by the h c the  sheriff reply that there be another writ at the suit of d returnable the last  return of the say term and that a be arrest and the without hoc that he be  arrest army of the writ of r and no bailbond give upon that writ he ought b to  traverse other thing be traversable there and if it be not traverse the bail  bind will be make void where it be right take which be not reason keb Bod v  Huans Treby chief justice contra the army pron  interrog  be not traversable  in any case and that be resolve sand and be himself have a report of the say  case which agree with the say book that it be hold by the court there that  army pron  interrog  be a a seize by force of the statute of use be not  traversable a vide ante a vide Doug b say vide post Lord Raymond er p not  traversable when one say such a thing be do army of a writ it be mean by  authority of the say writ by a operation of the law upon the say writ without  any ingredient or mixture of matter of fact and a mere matter of law be not to  be traverse and try by a jury foster and jackson case in Hobart be no  authority in this case be upon a issue try for if issue be take thereupon it  be not void but good after verdict the question in this case be whether the  party be bind to take such a issue that be before the court to be adjudge upon  a demurrer and in this case upon a special demurrer and for that reason in  this case he have save to himself by the demurrer all the advantage which may  be take to it and the form of plead ought to be preserve by we by all mean  that be the chief reason of the preserve the law so well until our time the  word army pron  interrog  per quod pretense or vigor pron  interrog  introduce  a consequence of law only from the matter of fact before state heath maxim of  plead h which be cite and allow Plowd dyer b where it be agree that the army  pron  interrog  never introduce any new matter but only collect the matter  before and if it be so be the conclusion only it ought not to be traverse but  the matter precedent upon which it depend which be proper matter of fact and  the army the conclusion of the law from such fact h accord the case h cite do  not resemble this case for it be not say here that he be in execution army c  but that he be commit in execution and the commitment be proper matter of fact  to be try whether there be such commitment or not and the same case be h where  it appear the commitment be of fact and there be a issue there join and as  have be say before if issue be join it be good that a man be seize vigor of  the statute of use will not be a good traverse upon demurrer yet after verdict  such a issue shall be good in Lord Raymond this case upon this traverse what  be the matter to be try whether any writ issue or whether the say a be take  out of prison but all this be allege before the army pron  interrog  or rather  all the matter upon this traverse shall be try and then the traverse be ill  contain multiplicity of matter of fact but the point of law upon this be a  single point suppose a person in the custody of the sheriff and another writ  be deliver to he and the sheriff upon delivery of it declare that he will not  execute it and the person escape upon which he who deliver the second writ  bring a action upon the escape and the sheriff plead that he be not in his  custody army of the second writ to he deliver in this case if the law be only  try by this traverse doubtless the party be in custody by delivery of the  second writ he be in custody before by another writ but the matter of fact be  contrary for he declare absolute that he will not execute it and by this it  appear that the law and not the fact be to be try upon this issue Nevil and  blencowe justice agree with Powell justice that general the army pron   interrog  be not to be traverse contain matter of law but when it be mix with  fact there it may be traverse and in this case there be matter of fact which  depend upon it and for that reason it be traversable and there may be some  case as the case of the bail bind where nothing but the army pron  interrog   be traversable as put before by Powell justice to the other matter the court  agree that the advantage of the exception for not aver that the executor be  within the age of seventeen be waive by plead over and judgement be give for  the plaintiff Lord Raymond er p Lord Raymond hilary term will B R sir John  holt chief justice sir Thomas Rokeby sir John Turton sir Henry gold knight  king sergeant this term be make a justice in the king bench in the room of sir  Samuel Eyre decease justice memorandum this term Mr sergeant Darnall be make  king sergeant in the room of Mr sergeant gold make justice of the king bench