The lawsuit raised by Clarke on behalf of Mr Newdegate still went on its difficult way, Bradlaugh fighting it inch by inch and point by point. On 2nd May 1881 he argued before the Lords Justices of Appeal a point on which he had previously been stopped, and on which no judgment had been given. This was as to the validity of the "replication," in which Bradlaugh argued that, as he had actually made affirmation, he could not properly be sued (as he had been) for sitting and voting without taking the oath. The judges ruled that as he was not in their opinion entitled to affirm, the fact of his affirming was not a valid answer. Defeated here, Bradlaugh decided next to endeavour to overthrow the action on what he described as a pure technicality, the argument that, as the writ was dated 2nd July 1880, and the vote sued on had been given on that day, the action had been brought too early, "for that the writ must be held to have been tested at the earliest possible moment of the 2nd of July, and therefore prior to the sitting and voting for which the penalty is claimed." This point was raised on 16th and 17th May before Lord Chief Justice Coleridge and Mr Bowen, on Clarke's counsel moving for judgment, and Bradlaugh advanced a long and learned argument on the point. Judgment was delayed, and the legal point was tried on 20th and 21st June, before Justice Denman and Watkin Williams, on the plaintiff's amended statement, Bradlaugh demurring. His demurrer was overruled, Justice Denman admitting that the point raised was "true as a general rule of law," but not applicable to this case; and his lordship gave this singular reason: "For a legal fiction is for the purpose of doing justice, not for defeating it." It was not suggested that justice was being done in the case in hand; but if Bradlaugh's argument were to hold good, it might be defeated in somebody else's case. "No rule of law," said Justice Watkin Williams concurring, "compels us so to violate common sense and plain understanding," another decision worth remembering in the present connection. Bradlaugh drily wrote in his journal: "I think the decision of Justices Denman and Watkin Williams is in accordance with common sense, but I do not think it is consonant with common law." He added: "I shall, of course, appeal against the decision. The next step will probably be the trial at _Nisi Prius_"--that was, the trial of the matter of fact as to the exact hour of issuing the writ, which had still to be proved by oral evidence before a jury.