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 ?