
    * Abner Kellogg versus Deodat Ingersoll.
    
      Practice. — In an action of covenant, special matter not allowed to be given in evidence under the plea of non est factum — though consented to by the plaintiff's counsel.
    The declaration stated that the defendant, by his deed, bearing date April 7, 1787, in consideration of £100 paid him by the plaintiff, conveyed to him in fee simple a certain tract of land lying in A, and in the same deed covenanted that the premises were free and clear of all encumbrances, &c. Breach alleged, that the premises were not free, &c. of encumbrance, because, at the time of making and executing the deed, there was, ever since has been, and yet is, a public road, or town-way, six rods wide, running through the same, containing two acres and one quarter of an acre.
    To this declaration the defendant pleaded non est factum; reserving a right to give any special matter in evidence. The plaintiff, consenting to the reservation, joined the issue.
    
      Ives and Dewey for the plaintiff. Bidwell for the defendant.
   The Court (Strong, Sedgwick, Sewall, and Thatcher, justices) inquired of the defendant’s counsel what special matter was intended to be given in evidence under this issue; and on being informed that the existence of the way was not denied, but that the reservation in the plea was for the purpose of proving to the jury that the road was a privilege — a benefit — and not an encumbrance ; they directed the pleadings to be set aside — saying it would be absurd to try, under this issue, whether the road be an encumbrance or not — that being a mere question of law, and would come properly before the Court upon a demurrer to the declaration. Suppose the trial were to proceed under this issue, and the Court should be of opinion that the road is not an encumbrance, then they must direct the jury to find for the defendant. What ? That the deed declared on is not the defendant’s deed ?  