Gaillon v. L'Aigle; for if being a foreigner was the only ground of that determination, there being no averment to that effect in the pleadings, (as has been before intimated,) the cafe feems unfupported. And indeed it does not appear, that Buller relied much on that circumftance; for he feems to ftate, as the reafon of his opinion, that the wife having traded, as a feme fole, had obtained credit as fuch, and ought to be How far, indeed, the doctrine with refpect to foreigners would be now acquiefced in, is for the diligent ftudent to determine. In Franks v. De Pienne, Efp. N. P. C. 587, Lord Kenyon ruled in favour of it; and he, in delivering judgment in the cafe of Marshall v. Rutton, faid, "that no authority could be found (except cafes by that II. The fecond clafs of cafes alluded to, confift of cafes decided upon the prin The leading cafes on this head, are (a) Ringstead v. Lanesborough, (a) Barwell v. Brooks, and Corbett v. Poelnitz. 1 T. R. 5; in which it was decided, that a feme covert living apart COVERTURE. Attempts were made in the principle; but they were all uniformly rejected. fubfequent cafes, to extend DURES S. PLEA. And the faid D. comes and defends, &c. when, kc. and fays, that he did not promise, &c. (general issue.) And for a further plea in this behalf by leave of the court here pleaded, the said D. fays, that the Plaintiff his action aforefaid ought not to have or maintain against him, because be fays, that he the said D. before and at the time of the making the faid bill of exchange in faid declaration mentioned, was imprifoned by the Plaintiff and others in collufion with him, to wit, at, &c.; and then and there continued under that imprisonment, and was then and there kept, and detained in prison until he the faid D. through the force and and reftraint of that imprisonment, there made and gave the faid bill of exchange to the Plaintiff; and this he is ready to verify: Wherefore he prays judgment, if the Plaintiff his action aforesaid against him ought to have or maintain, &c. REPLICATION. And the Plaintiff, as to the plea of the faid D. laftly above pleaded in bar, faith, that he, by reason of any thing therein alleged, ought not to be barred from his action aforefaid against faid D. because he fays, that the faid D. at the time of making the said bill of exchange, was free and at large, and not under any imprisonment; and that the said D. made the faid bill of exchange of his own free will, and not by force or restraint of imprisonment, as the faid D. hath above alleged; and this he prays may be inquired of by the country. See 3 Went. 94, 95. DURESS. Plea. Defendant gave the bill of exchange by dųrefs. Replication. Defendant was at large. TENDER. PLEA. And (a) for further plea as to 10 dolls. refidue of the faid 30 dolls. in the said first promise in said declaration mentioned, the faid D. fays, that the Plaintiff (6) ought not to have or maintain his action aforesaid thereof against him, to recover any more or greater damages than 10 dolls. in this behalf; because he says, that he the faid D. after the making of faid first promise in faid declaration mentioned, and before the commencement of this action, to wit, at, &c. on, &c. tendered the faid fum of 10 dolls. to the Plaintiff, who ben and there refused to receive the fame; and the faid D. further TENDER. further faith, that he, from the time of making the faid firft promise as to the faid 10 dolls. hitherto always hath been, and still is ready to pay the Plaintiff the faid fum of 10 dolls. to wit, at, &c. and now brings the fame here into court ready to pay the Plaintiff if the Plaintiff will accept the fame; and this he is ready to verify: Wherefore he prays judgment, if the Plaintiff ought to have or maintain (a) Or," any dam- his action aforefaid against him to recover any (a) more or ages by reafon of greater damages than 10 dolls. in this behalf, &c. the non-payment thereof." Tidd's Practice 213. 2 Salk. 662. Replication. No tender. REPLICATION. And the Plaintiff, as to the plea of the faid D. fecondly above pleaded, as to the faid 10 dolls. refidue of the faid 30 dolls. in the faid first promise in said de claration mentioned, fays, that he, by any thing therein alleged, ought not to be barred from his action aforefaid (b) This is not in thereof against the said D. to (b) recover his full damages in Lilly 476. Replication. Sub fequent request and refufal. (c) "Before," if this behalf, because he fays, that the faid D. did not offer to pay him the faid fum of 10 dolls. in manner and form as the faid D. hath above in pleading alleged; and this he prays may be inquired of by the country. See 3 Went. 176. Lilly 476. And thereupon the Plaintiff freely accepts out of court here the faid 10 dolls. fo brought here into court; wherefore the Plaintiff is fatisfied as to the faid 10 dolls. and as to the trial of the faid iffue, &c. See 3 Went. 177. 3 Morg. 167. NOTE. If Defendant bring money into court on a plea of tender, Plaintiff may take it out, though he reply that the tender was not made be REPLICATION. And the faid Plaintiff fays (precludi non,) (as before,) because he says, that (c) after the making faid tender in faid plea mentioned, and before the commencefo, for either is ment of this action, to wit, on, &c. at, &c. he, the Plaintiff, good. requested the faid D. to pay him the faid 10 dolls. which the faid D. then and there refused; and this he is ready to verify: Wherefore he prays judgment, and that his damages by reafon of the non-payment of faid 10 dolls. may be ad judged to him, &c. See 3 Went. 180. 3 Morg. Pl. 7. p. 168. REJOINDER. REJOINDER. And the faid D. faith, that the Plaintiff did Tender. not requeft him to pay the faid 10 dolls. in manner and Rejoinder. form as the Plaintiff hath above in said replication alleged; request. and of this he puts himself upon the country. PLEA. And the faid D. comes and defends, &c. when, &c. and fays, that the Plaintiff ought not to have or main tain his action aforesaid thereof against him, by reason of the non-payment of the said sum of 100 dolls. with intereft, to recover further damages than the fum of 150 dolls. because Le fays that the promiffory note mentioned in the faid Plaintiff's declaration aforefaid, was on, &c. there mentioned, made and figned by the faid D. and by one A. B. now deceased, in and by which they jointly and feverally promised the Plaintiff to pay him or his order the faid fum of 100 dolls. on demand, with lawful interest therefor until paid, it being the proper debt of the faid A. B. as the faid D. avers; and the faid A. B. and the said D. at the time of the making the faid promise, and until the tender hereafter mentioned, were ready to pay the Plaintiff the faid fum of 100 dolls. with the intereft lawfully due thereon; and that afterwards at, &c. on, &c. the faid A. B. tendered to the Plaintiff the fum of 150 dolls. being the amount of the principal and intereft of the faid note, which the Plaintiff then and there refused to receive; and the said A. B. and the faid D. have ever fince until the death of faid A. B. been ready to pay the fame to the faid Plaintiff; and the said D. ever fince the death of faid A. B. hath been ready to pay the fame to the Plaintiff, and he here in court produces the fame money to be paid to the Plaintiff, if the Plaintiff will receive the fame; and this he is ready to verify: Wherefore he prays judgment, if the faid Plaintiff ought to maintain, &c. to recover further damages than the fum of 150 dolls. by reafon of the non-payment of the faid fum of 100 dolls. and interest, and that his the faid D's. cofts may be adjudged to him. T. PARSONS. No Plea. Tender by partner deceased, on a joint and fev cral note. REPLICATION. And the Plaintiff fays, that by any thing Replication. Subby the faid D. above in pleading alleged, he ought not to fequent refusal. be precluded from having and maintaining his action afore faid thereof against the said D. because he fays, that after S. R. 3 Went. 180, the tender of the faid A. B. by the said D. above in his plea fuppofed, to wit, on, &c. at, &c. he, the Plaintiff requested the |