Barnardiston king b hoar and gate vide before this matter come now on again  sergeant wright argue for the plaintiff he say he shall not contend but the  defendant may possible take advantage of that matter upon motion which he have  insist upon in his rejoinder but submit it that in plead he can not for this  purpose he cite the case of Jones and burnet east Geo in the common plea there  assumpsit be bring by the plaintiff as endorsee of a note by attachment of  privilege the defendant plead that though the attachment of privilege bear  testae the that of February be the last day of hill term yet in fact it be not  sue out till the that of march and the endorsement be not make before that day  to this plea there be a demurrer and the court hold it to be bad to the like  purpose he cite the case of the king and man in the court of exchequer there  the defendant claim title to good which be take upon a extent test the last  day of Trinity term Geo and make out by Mr baron price the five of October  follow the defendant demand oyer of this extent and set this matter out by his  plea in order to show that this extent be bad the court be of opinion that the  fault can not be take advantage of by plea but be proper to come on by motion  which accord it do and then the court be of opinion it be bad to the like  purpose he cite the case of full and Josling Vol I and far cite   light Carthw  and salk he observe too that the counsel of the other side have agree upon the  former argument that no such averment will be make in the case of a original  but will have distinguish this case from that by reason that in a bill of  Middlesex there be no testae for his part he say he can see no difference  because it be certain that though such writ be not take out but by application  of the party yet in judgement of law the court order it to issue which can be  do only in termtime Mr Dennison argue on the other side and say he shall not  contend but in many respect the sue out this bill relate to the term precedent  but this be only a fiction and nothing be more certain than that a fiction  shall work no wrong in the present case he say the plaintiff right be  extinguish by the statute of limitation and if the present fiction shall  prevail the plaintiff right will revive manifest to the injury of the  defendant and for this purpose he cite keb keb Ven and raym the chief justice  and judge probin incline to be of opinion for the plaintiff they do agree that  a fiction shall do no wrong but do not think that if this fiction shall  prevail in the present case there will be any to the defendant the lawmaker  they say must be suppose to have understand the law and the course of the  court which be part of it and therefore they doubt whether the legislature  intend that the plaintiff shall be bar of his cause of action till the end of  the vacation after the six Barnardiston king b year be over judge page and  judge lee be of a contrary opinion and think that the intent of the  legislature must be to require the plaintiff to put in his demand within the  six year and not to allow he to do it in the vacation after accord this matter  stand over vide postea