
    Garland Hinchy vs. John Foster.
    To an action of assumpsit, defendant pleaded a lender before action, viz: on the 6th March 1823; and the plaintiff replied that his writ was sued out on thelirst Monday after thefonrth Monday inOctober, 1822. The defendant rejoined that the tender was made before suit brought. Held that plaintiff’s replication must be taken as true, and that defendant’s plea ought not to have been allowed, without showing that he tendered costs also.
    Tried before Judge Gaillard, at Lancaster spring term, 1S25.
    This was an action of assumpsit, to which the defendant pleaded that he had tendered the sum due before the commencement of the action; to-wit: on the sixth day of March, 1823. The plaintiff replied that his writ was sued out, the first Monday after the fourth Monday in October, 1822. The defendant in his rejoinder does not deny the truth of the replication, but merely states that the tender was made before the suing forth the original writ. Under this state of pleadings, the jury under the direction of the presidingjudge found a verdict for the defendant. And this was a motion for anew trial, on the ground that the verdict was contrary to law.
   IWott, J.

The defendant pleaded a tender on the sixth of March, 1823. The plaintiff replies a writ sued out the first Monday after the fourth Monday in October, preceding, That allegation is not denied by the rejoinder. It must therefore be taken as true, and if true, then the defendant’s plea ought nol to1 have been allowed, without shewing that he had tendered or offered to pay the costs also.

Aills, for the motion..

í'í illicms Si Clinton, contra. .

The motion must therefore be granted,  