the same assured, on the same interest in the property in the said policies respectively embraced, and that the property embraced in the said policies was the same, and no other, and the said policies covered the same risks, and no others.

And the said defendant further says, that all the policies aforesaid, at the time of the loss of the said schooner, remained uncanceled, and that the said plaintiff and the said Conrad Reid hold the same, and insist upon the validity thereof; but that it was provided, in and by the policy in the said complaint set forth, that there should not be insured, upon the property covered by the policy in the said complaint set forth, more than $11,000, and that in case of any excess over $11,000, then the said policy was to be void, by reason whereof and of the premises, the said defendant claims and insists that the said plaintiff ought not to have or maintain his aforesaid action against it, the said defendant, and therefore prays judgment that the said complaint may be dismissed, with costs to be paid to it, the said defendant, by the said plaintiff.1

JOHN GANSON,

Defendant's Attorney.

'This is surplusage and ought not to be inserted in the answer.

(No. 23.)

Answer in an action on fire insurance policy, that the policy, by its terms, required notice to be given of any existing prior policy; that there was such prior policy and no notice given.1

SUPREME COURT.

William Cockroft
agt.

The Clinton and Essex Mutual Insurance

Company.

The defendants, in answer to the complaint of the plaintiff in this action, say:

That said application for insurance, referred to in the complaint, made by the Cohoes Company, was in writing, signed by said company, by their agent, F. S. Claxton, and which application is referred to in the policy of insurance, issued by the defendants to said Cohoes Company, as a part thereof; and the defendants aver, that said application was and is a part of said policy of insurance.

And for further answer the defendants say, that said policy of insurance contained a clause therein, as follows: "And provided further, that in case the assured shall have already made any other insurance against loss by fire on the property herein insured, not notified to this corporation, or in case the assured or assigns of the assured shall hereafter make any other insurance on the same property, and shall not with all reasonable diligence give notice thereof to this company, and have the same indorsed on

1 To Complaint No. 52, Part III., ante, p. 450.

this instrument, or otherwise acknowledged by them in writing, this policy shall cease and be of no further effect." That according to defendant's information and belief, said Cohoes Company had, at the time of obtaining said policy, set out in the complaint, already made another insurance on the same property, for the sum of $3,000, in the New-York Life, Fire, Marine and Inland State Stock Company, which insurance was obtained on or about the 1st day of October, 1849, and which was, at the time of obtaining said policy of insurance from defendants, a subsisting insurance on said property, and treated and supposed to be valid and effectual by the said Cohoes Company, and was in fact a previous insurance upon said property, and which insurance was not notified to the defendants by the assured at the time of issuing said policy set out in complaint, or in any way mentioned in said application for insurance by the said Cohoes Company. C. F. TABER,

Defendants' Attorney.

(No. 24.)

Answer, specific denial of contract set forth in complaint; statute of frauds on a guaranty; and settlement of cause of action after suit brought.

Title of the Cause.

The defendant denies, that he executed a contract or agreement with the plaintiff, in which he, the defendant, agreed to and with the plaintiff, that [negativing the particular allegations which the defendant controverts, whether set forth in the complaint expressly, or by necessary implica

tion,] but alleges that the only contract or agreement made by him was verbal as hereinafter stated, and [setting it forth verbatim, or in substance as actually made.]1

Second. And for a second and further defence, the defendant alleges, that the agreement or promise, in said complaint mentioned (if any such was made),2 was a special agreement or promise for the debt of another person, to wit, one A. B., and that it was an agreement or promise by parol; and no agreement or promise in respect of or relating to the supposed cause of action, in the said complaint mentioned, nor any memorandum or note thereof wherein the consideration for the said special promise was stated or shown, was or is in writing, or was or is signed by the said defendant, or by any other person, by him thereunto lawfully authorized according to the statute in such case provided.

Third. And for a third and further defence, the defendant says, that after the making of the promise mentioned in the complaint, and after the commencement of this suit, to wit, on the day of the said plaintiff and

defendant made a settlement of the cause of action mentioned in said complaint, and the plaintiff executed and

An answer to a complaint on contract, which seeks to deny any portion of, or vary the contract as alleged, may, it seems, either deny the contract in the complaint, or set up the real contract verbatim, and then state the matter in avoidance. (Dimon v. Dunn, 1 Smith 15 N. Y. Rep., 498.)

2

This may be properly stated in an answer and is not hypothetical. (See note, ante, p. 548.)

3 Though this third answer really admits the making of the contract, still it does so only for the purpose of the separate answer itself, and is not available as against the qualified denial of the contract in the first answer. The plaintiff must recover upon the whole record; each defence is separate in itself, and an admission in one does not preclude the defendant from proving the matter of defence set up in another. (Swift v. Kingsley, 24 Barb., 541.)

delivered to the defendant his writing of release, embracing, as the plaintiff avers, the identical cause of action mentioned in said complaint, which release is in the words and figures following, to wit: [Set it forth.]1

(No. 25.)

Discharge under bankrupt act in an action on a judgment.2

Title of the Cause.

That after the rendition of said judgment, to wit, on the 18th day of November, 1842, the defendant, then being a resident of the city and county of New-York, and having become a bankrupt within the provision of the act of Congress, entitled "An act to establish a uniform system of bankruptcy throughout the United States, passed August 19th, 1841," and owing debts which had not been created in consequence of a defalcation as a public officer, or as an executor, administrator, guardian or trustee, or while acting in any other fiduciary capacity, did, by petition with schedules annexed thereto, setting forth, to the best of his knowledge and belief, a list of his creditors, their respective places of residence, and the amount due to each, with an accurate inventory of his property, right and credits of every name, kind and description, and the location and situation of each and every parcel and portion thereof, and duly verified by his oath, and therein declaring himself to be unable to meet his debts and engagements, and in all things conforming to

1 Within the decision in Willis v. Chipp (9 How., 568), the defendant may set up in his answer matter of defence showing a settlement or discharge of the cause of action after suit brought.

2 To Complaint No. 45, Part III., ante, p. 439.