the provisions of the aforesaid act, apply to the District Court of the United States of America, held for the Southern District of New-York, at the city of New-York, for the benefit of said act; and on the presentation of said petition and schedules at said District Court, held at the City Hall of the city of New-York on the same 18th day of November, 1842, before the Hon. Samuel R. Betts, district judge, it was ordered by the said court that cause should be shown before the court on the 22d day of December then next, at eleven o'clock in the forenoon, why the said John Russell should not be declared a bankrupt, pursuant to the act of Congress in that behalf, and that notice of said petition should be published daily, in the city of New-York, for twenty days, pursuant to the rules and regulations in bankruptcy, numbers fourteen and seventy; and such proceedings were thereupon had, in pursuance of said act, that at a District Court of the United States of America, held for the Southern District of New-York, at the City Hall of the city of New-York, on the 22d day of December, 1842, before the district judge aforesaid, it was ordered and decreed by the court that the said John Russell be, and he was thereby, declared and decreed a bankrupt, pursuant to the act aforesaid; and such further proceedings were thereupon had, in pursuance of said act, that afterwards, at a District Court of the United States of America, held for the Southern District of New-York, at the City Hall of the city of NewYork, before the Hon. Samuel R. Betts, district judge, it was ordered by said court, that notice should be given to all creditors who had proved their debts against the said John Russell, bankrupt, and other persons in interest, to appear and show cause before the said court, on the 13th day of April then next, at eleven o'clock in the forenoon, why a discharge and certificate should not be granted the said bankrupt, and that service of said notice should be made by publishing the same seventy days in the Morning Courier and New-York Enquirer, a public newspaper published in the city of New-York, designated for that purpose by the court, and also by service, pursuant to rule sixty-eight of said court; and that such further proceedings were thereupon had in the said matters and in further pursuance of the said act, that afterwards, at a District Court of the United States of America, held for the Southern District of New-York, at the City Hall of the city of New-York, on the 8th day of June, 1843, before the Hon. Samuel R. Betts, district judge as aforesaid, it was ordered, decreed and allowed by the said court, that the said John Russell (the defendant in this suit) should be, and he accordingly thereby was, fully discharged of and from all his debts provable under the said act, and owing by him at the time of the presentation of his petition to be declared a bankrupt; and it was further ordered that the clerk of said court should duly certify the said decree under the seal of said court, and deliver the same to the said bankrupt when demanded; and the clerk of said District Court, in pursuance of said order, did duly certify the said decree under the seal of said court, and delivered the same to the said bankrupt. And the defendant further says, that the judgment stated and set forth in said complaint was rendered, and the cause of action mentioned and set forth in the complaint in this cause accrued, to the plaintiff before the presentation by the defendant of his said petition to be declared a bankrupt as aforesaid, and was provable under the said act; that said discharge and certificate were duly granted, and were, and are, a full and complete bar to, and discharge of, the action of the plaintiff in this suit. LATHROP & BURDITT, Defendant's Attorneys. Title of the Cause. (No. 26.) Arbitration and award.1 The defendant, in answer to the complaint of the plaintiff in this action, alleges: That before the commencement of this action, to wit, on the day of, the plaintiff and defendant entered into an agreement to submit themselves to the arbitration of, and in all things abide and fulfill the award and final determination of A. B., mutually chosen by said plaintiff and defendant to arbitrate, award and determine of and concerning all and all manner of action and actions, cause and causes of action, controversies and disputes whatsoever, between said plaintiff and defendant, [or if it be only the particular matter in suit, specify it,] so as that the said award should be made by said arbitrator, ready to be delivered to said parties, or either of them, on or before the day of next, which time for making the said award was afterwards, and before the time for making the same expired, to wit, on the larged by said parties to the day of day of en That before the expiration of said last mentioned time, and on the day of―, the said arbitrator took upon himself the burden of said arbitration, and having duly examined and considered the subject matters in dispute between the said plaintiff and said defendant, made his award in writing, of and concerning said cause of action 1 In an action under the Code the defendant will not be allowed to prove an award upon the cause of action in suit, unless he set it up in his answer, nor will it avail him even though the fact of the award appear from the plaintiff's own evidence. (Brazil v. Isham, 2 Kernan, 9.) mentioned in said complaint, and did thereby then and there award that, [here set forth award]. As by reference to said award, bearing date, &c., will more fully appear. (No. 27.) Release as to part of the demand, and tender before suit as to the residue. Title of the Cause. The defendant, in answer to the plaintiff's complaint, says: First. As to a part of the demand mentioned in said complaint, to wit, [stating it,] the plaintiff did, on the day of, by writing, under his hand and seal, delivered to the defendant, release and discharge the defendant, his heirs, executors and administrators, and each and every one of them, from said indebtedness, and all sums of money then due and owing or thereafter to become due and owing thereon, and also all actions and cause or causes of action, damages and demands whatever, both at law and in equity, which he, the said plaintiff, should or might thereafter have, [stating the substance of the release,] upon or arising out of said indebtedness or demand. Second. And for further answer the defendant says, that as to the residue of the indebtedness and demand, mentioned in said complaint, to wit, the sum of $—, he, the said defendant, before the commencement of this action, and on the day of, was ready and willing, and then tendered and offered to pay the plaintiff the said sum of $, parcel of said demand, which he, the said plaintiff, refused to receive. And the said defendant has always, since that time, been ready to pay, and still is ready to pay the plaintiff the said sum of $, and he now brings the same into court here ready to be paid to the said plaintiff, if he will accept the same.1 [Or if the money has been paid into court, "And the defendant avers that he has paid the said sum of $ into court, to wit, to day the clerk of this court in Saratoga county, on the of, ready to be paid to the plaintiff, if he will accept the same."] 1 As to the necessity of paying the money into court and pleading it as so paid in, see note, ante, p. 552. A partial defence, such as payment, release, tender, &c., may be pleaded, and indeed to be available it seems must be pleaded, or no evidence can be given of it. (Texier v. Gouin, 5 Duer, 359; see, also, Pleadings, 454-458.) But the matter must be a defence to some part of the action. A defence to an action for the price of goods sold, that they were not worth the sum claimed, or in an action for assault and battery of mere matter in mitigation of damages, is no defence to any part of the action; and the only execption seems to be in actions of libel and slander, where, by the Code, mere matters in mitigation may be pleaded alone, with or without any other defence. (Van Benschoten v. Yaple, 13 How., 97; Saltus v. Kipp, 5 Duer, 646; Gilbert v. Rounds, 14 How., 46.) An implied admission in one of two or more separate answers is not available as against the others. The plaintiff must recover, if at all, on the whole record. (Swift v. Kingsley, 24 Barb., 541.) |