case aubry against fortescue to a assumpsit bring on a promise to pay saint  may the defendant plead the statute of limitation Qure if a replication state  that he be beyond sea when the cause of action accrue and that the action be  begin within six year after his return be good Com dig Temps g I the plaintiff  declare that the defendant be indebt to the plaintiff pro need et labour c  promise he on the first of April to pay he the money upon the first of may c  the defendant plead the statute James c in bar non assumpsit infra sex aged  the plaintiff reply that he be beyond sea at the time the action accrue and  that the action be begin within six year post return the defendant demurrer  and the plaintiff join in demurrer for the plaintiff turner case a   a be  quote that if the bar be bad in substance and there be a replication only to  avoid the bar which replication be vicious modern report and to this  replication the defendant demurrer yet the plaintiff must have his judgement  because though the replication be nought yet not be to enforce the cause of  action but to avoid the bar which be have in substance for the bar shall have  be action non to grow progressively and not non assumpsit a see Salkill v  Warman ante a it be no prejudice to the plaintiff what be most material insist  upon for the defendant be that the whole record be what the court be to find  their judgement upon that therefore if it appear upon the whole record that  the plaintiff have no cause of action whether by reason of declaration bar  replication c not material which the plaintiff can never have judgement and  here the plaintiff by his own replication have quite destroy his cause of  action for he admit that he have not bring his action within six year after  the cause of action accrue but take sanctuary in the save clause of the  statute of limitation the question therefore be whether the matter set forth  in his replication bring he within the save clause of the Act action of  assumpsit be not mention in the save clause and consequent it be plain that  the plaintiff be not entitle to the benefit of the save by the letter of it  and that the save in the statute of limitation be not to be extend accord to  equity the modern report er p resolution in Bynions case b salk b that the  shut up of court tempore war do not likewise fall under the save a resolution  often approve of by chief justice holt be a express authority the court be  strong of opinion for the plaintiff say adjournatur