¶1I concur in the general view of the law taken by the presiding justice, but I differ with him as to the result of this appeal. There was no demurrer to the traverse, nor admission of the facts stated- therein. The respondent below was not called upon to deny, in an independent pleading, the relator’s allegations. When a traverse is interposed,-the issue is made-, up, and no further pleading is required. The language of the Code is explicit:: “A prisoner, produced upon the return of a writ of habeas corpus, may, under oath, deny any material allegation of the return, or make any allegation, of fact showing either that his imprisonment or detention is unlawful, or that, he is entitled to his discharge. Thereupon the court or judge must proceed, in a summary way, to hear the evidence produced in support of or against the-imprisonment or detention, and to dispose of the prisoner as the justice of the-case requires. ” In the case at bar the learned judge, in place of this proceeding, treated the allegations of the relator’s traverse as true, and discharged the child. This, I think, was unwarranted, and the order should therefore be reversed, and the matter remitted to the special term to proceed to hear the evidence which may be produced by either party, and thereupon to dispose of the case as justice requires.
¶2Bartlett, J., concurs.