burden and tomling how far a plea ought to conclude to the country how far  with a averment in a action upon the case the plaintiff declare upon a  promissory note give by the defendant and bear date the d day of Feb by which  note the defendant Barnardiston king b er p agree to pay the plaintiff several  sum at several instalment the last of which be not to be till some time in the  year and then the declaration set forth that the defendant so be indebt the  same die year promise to pay but that he do not pay the same whereupon the  plaintiff bring his action for the money due on some of the first instalment  to this the defendant plead that he become a bankrupt on the that of march  which be before the money due upon the first instalment and that the cause of  action accrue before such time as he become a bankrupt and conclude his plea  with a hoc a preparation be verify the plaintiff in his replication demurrer  to this plea and show for cause that the plea ought to have conclude to the  country and not with a averment Mr Bootle Jun now argue for the plaintiff and  submit in the first place that the substance of the plea be bad because the  act of bankruptcy be before the first instalment and in the next place that  the conclusion of the plea be bad and to this purpose cite the case of Britton  and lassel mich Geo in the court of exchequer that be a action upon several  promise as to all the money demand by the declaration but the defendant plead  his become a bankrupt and conclude his plea in the same manner as this be with  a hoc a preparation be verify and as to the part of the say promise he plead  non assumpsit the plaintiff demurrer to this plea and show two thing for cause  one that the plea ought to have conclude to the country the other that it be  uncertain which of the promise the except relate to the whole court he say  deliver their opinion that the plea be bad upon the first exception and the  late chief baron say that he have know the same point twice before determine  so upon his argument Mr Josling on the other side argue and submit in the  first place that the action ought not to have be bring till the last day of  payment be over and for this purpose rely upon   light he submit it likewise  that the declaration be bad in substance because the promise to pay be lie to  be at the time of the last instalment for the word the same die year must  refer to that time it be a know rule that the word idem always strike back  proximo what precedes then in answer to what have be object against the defen  Barnardiston king b daunt plea he submit it that it be right both in form and  substance and the determination of both these question must depend upon the  construction that shall be make on the statute of Geo the last clause relate  to the substance of the plea and therefore he choose to observe upon that  first as to that he say the word of the clause be that the certificate of a  bankrupt shall be a full discharge of any debt or demand contract due or  demandable before the issue out of the commission and he do submit it that a  note of hand Payable at a future day be in itself a demand contract before the  day of payment within the meaning of the Act then as to the form of the plea  he say he apprehend that the plea will have be bad if it have conclude to the  country the plea of the bankruptcy be a new fact not deny any thing that the  plaintiff have allege in his declaration but confess and avoid it but before  the party be entitle to join issue there must be both a negative and a  affirmative and beside he observe that there be fact which the plaintiff may  possible allege in avoidance of the defendant plea which the defendant by  conclude to the country will have prevent he from do the chief justice declare  his opinion to be that the action be well bring and say that in these contract  he take it the distinction be between action of debt bring upon they where the  thing itself be to be recover and these where damage only be to be recover for  here the jury may sever the damage as they think proper he say likewise that  he take it the substance of the plea be not good and that the promissory note  in question be not a demand contract till the day of payment within the  meaning of the Act Mr Bootle too in his reply say that the the same die year c  be mere surplusage and therefore he apprehend whatever construction be make of  it it can signify nothing however the court do not deliver their opinion  solemnly upon any other point but that relate to the form of the plea and as  to that matter the court declare their opinion to be that the intention of the  legislature be that the plaintiff shall not be able to reply any new matter  but that the whole merit of the action shall be try upon that single issue for  which reason they declare their judgement to be that the plea ought to have  conclude to the country and so judge lee say this point be determine in the  case of Barnardiston king b er p mile and William in this court when Lord  Mackelfield sit as chief justice there debt be bring upon bind against two the  defendant joint plead that the plaintiff ought not to have his action because  one of the defendant become a bankrupt after the bind become due and in the  plea set out more than it need have do and then say such he become a bankrupt  hoc prepared are verify to this plea the plaintiff special demurrer for this  very reason for which the plaintiff now do and upon great debate the  conclusion of the plea be hold bad accord in the present case the court give  judgement for the plaintiff the next day Mr Josling come into court and say  that he have be inform that a case of Barnardiston king b the same nature with  the present one have late be in the common plea the name of it be full and  burden and it be determine about three term ago there a plea of bankruptcy  conclude to the country and in sergeant Hawkins argument to support it the  whole court seem clear inclinable against it upon its come on again before  that court the case of mile and William which have be mention be cite he do  agree three of the judge alter their former opinion and hold the plea to be  good but the chief justice continue of the opinion he be of at first for which  reason he hope the judge of this court will be please to confer with the court  of common plea and that as the judgement be in the breast of this court for  the whole term they will be please to stay execution till they have confer  with they but the court say that since they declare their resolution yesterday  they have consider of this matter again among themselves and have find strong  reason to abide by their opinion for upon judge lee look into the case of mile  and William he have find that in Lord Macklesfields argument he have cite  another case determine upon the same point and that be the case of bugg and  Lacey Ann the chief justice far say that upon look into the old book he  believe it will be find that a affirmative and negative be not always  requisite to the form a issue and instance the case of part Finis nothing to  have accord the court declare that they will abide by the resolution they have  give and let the party take his remedy by a writ of error vide post