for any additional expense it might be put to by reason of the said purchase of said three thousand seven hundred and fifty tons of ice; and that the said defendant did not, in manner and form as is in said count alleged, notify the said plaintiff that it would not in its part perform the covenants and agreements by it to be performed under the agreement in writing referred to in said count; and of this the defendant puts itself upon the country, &c.

And this defendant, for a further plea to said first count of the said declaration, by like leave of the court first had and obtained, says that the said plaintiff ought not to have or maintain its aforesaid action thereof against it, because he says that the said plaintiff during the said months of June, July, August and September delivered to the defendant only six thousand one hundred and fifty-five tons of ice, all of which was paid for by the said defendant to the said plaintiff before the commencement of this suit, and that as to the balance of the said fifteen thousand tons, viz., eight thousand eight hundred and fifty-five tons, the said plaintiff did not, in manner and form as is in said count in that behalf alleged, or at the times and in the manner required by the said agreement referred to in said account, tender or offer to deliver the same, or any portion thereof, and of this the defendant puts itself upon the country, &c.

And the said defendant, for plea to said second count to the said declaration, by leave of the court for that purpose first had and obtained, according to the form of the statute in such case made and provided, says that the said indenture therein referred to as made on or about February thirtieth, eighteen hundred and ninety, and of which a copy is alleged to be annexed to said declaration as "Exhibit 1," is not its deed, and of this it puts itself upon the country, &c.

And this defendant, for a further plea to said second count of the said declaration, by like leave of the court first had and obtained, says that the said indenture therein referred to as made on or about April seventh, eighteen hundred and ninety, and of which a copy is alleged. to be attached to said declaration as "Exhibit 2," is not its deed, and of this it puts itself upon the country, &c.

And this defendant, for a further plea to the said second count of the said declaration, by like leave of the court first had and obtained, says that the said plaintiff ought not to have or maintain his aforesaid action thereof against it, because it says that the said plaintiff was not in manner and form as is in said count alleged, ready and willing, and did not offer to deliver to the said defendant, or request it to accept the said chattels in the said count mentioned or any portion thereof; and that the said plaintiff did not, in manner and form as is therein alleged, deliver to the defendant eleven thousand two hundred and fifty tons of ice, of two thousand pounds to the ton, of good mercantile ice of not less than twelve inches in thickness, or any portion thereof, and that the defendant did not, in manner and form as is in said count alleged, accept the same

in part performance of the said contract referred to in said count; and that the said plaintiff did not, in manner and form as is in said count alleged, pack or deliver six thousand one hundred and fifty-four tons of good mercantile ice, or any portion thereof, in accordance with the said promise and undertaking of the plaintiff; and that the said plaintiff, in manner and form as is in said count alleged, was not ready or willing and did not tender or offer to deliver at the places in said agreement specified, free on board of vessels suitably and properly dunnaged for a voyage to Newark, five thousand and ninety-five and five hundred and twenty two-thousandth tons of ice, or any portion thereof; and that the said plaintiff was not, in manner and form as is in said count alleged, ready or willing, and did not tender or offer to deliver to the defendant three thousand seven hundred and fifty tons, of two thousand pounds to the ton, of good mercantile ice of not less than twelve inches in thickness, purchased by the plaintiff, or any portion thereof; and that the said plaintiff did not, in manner and form as is in said count alleged, tender or offer to indemnify the defendant for any additional expense it might be put to by reason of the said purchase; and that the plaintiff did not, in manner and form as is in said count alleged, request the defendant to accept the same, and of this the defendant puts itself upon the country, &c.

And this defendant, for a further plea to the said second count of the said declaration, by like leave of the court first had and obtained, says that the said plaintiff ought not to have or maintain his aforesaid action thereof against it, because he says that the said plaintiff during the said months of June, July, August and September delivered to the defendant only six thousand one hundred and fifty-five tons of ice, all of which was paid for by the said defendant to the said plaintiff before the commencement of this suit, and that as to the balance of the said fifteen thousand tons, viz., eight thousand eight hundred and fifty-five tons, the said plaintiff did not, in manner and form as is in said count in that behalf alleged, or at the times and in the manner required by the said agreement referred to in said account, tender or offer to deliver the same, or any portion thereof, and of this the defendant puts itself upon the country, &c.

And the said defendant, for plea to said third count to the said declaration, by leave of the court for that purpose first had and obtained, according to the form of the statute in such case made and provided, says that the said indenture therein referred to as made on or about February thirteenth, eighteen hundred and ninety, and of which a copy alleged to be annexed to said declaration as "Exhibit 1," is not its deed, and of this it puts itself upon the country, &e.

And this defendant, for a further plea to said third count of the said declaration, by like leave of the court first had and obtained, says that the said indenture therein referred to as made on or about April seventeenth, eighteen hundred and ninety, and of which a copy is alleged

to be attached to said declaration as "Exhibit 2," is not its deed, and of which it puts itself upon the country, &c.

And the said defendant, for a further plea to said third count of the said declaration, by like leave of the court for that purpose first had and obtained, says that the said plaintiff ought not to have or maintain his aforesaid action thereof against it, because it says the said plaintiff did not, in manner and form as is in said count alleged, convey to the defendant eleven thousand two hundred and fifty tons of ice as alleged in said count, or any portion thereof; and that the said plaintiff did not, in manner and form as is in said count alleged, pack and deliver six thousand one hundred and fifty-four and fourteen hundred and eighty twothousandths tons, of two thousand pounds to the ton, of good mercantile ice, in accordance with the said promise and undertaking of the plaintiff as alleged in said count; and that the said plaintiff, in manner and form' as is in said count alleged, was not ready or willing and did not offer to pack and deliver free on board of vessels suitably and properly dunnaged for a voyage to Newark, and at the places designated in the said agreements mentioned in said count, three thousand and ninety-five and five hundred and twenty two-thousandths tons of ice cut and stored, as alleged in said count, or any portion thereof; and that the said plaintiff, in manner and form as is in said count alleged, was not ready or willing and did not offer to make up the quantity of fifteen thousand tons to be delivered under the said agreement referred to in said count, or any portion thereof, or to indemnify the defendant for any additional expense it might be put to; and that the said plaintiff did not, in manner and form as is in said count alleged, request the defendant to accept the same or any portion thereof; and that the said defendant did not, in manner and form as is in said count alleged, notify the plaintiff that it would not accept any more ice under said instruments in writing referred to in said count, and of this it puts itself upon the country, &c.

And this defendant, for a further plea to said third count of the said declaration, by like leave of the court first had and obtained, says that the said plaintiff ought not to have or maintain his aforesaid action thereof against it, because he says that the said plaintiff during the said months of June, July, August and September delivered to the defendant only six thousand one hundred and fifty five tons of ice, all of which was paid for by the said defendant to the said plaintiff before the commencement of this suit, and that as to the balance of the said fifteen thousand tons, viz., eight thousand eight hundred and fifty-five tons, the said plaintiff did not, in manner and form as is in said count in that behalf alleged, or at the times and in the manner required by the said agreement referred to in said account, tender or offer to deliver the same, or any portion thereof, and of this the defendant puts itself upon the country, &c.

JOHN R. EMERY, Attorney for Defendant.

United States of America, District of New Jersey, ss.-William H. Lyon, being duly sworn according to law, on his oath says, that he is the President of the Newark City Ice Company, the defendant named in the above suit; that the above pleas are not intended for the purpose of delay, and that he verily believes the defendant has a just and legal defence to said action on the merits of the case.

me.

WILLIAM H. LYON.

Sworn and subscribed this fourteenth day of November, 1891, before WM. H. EMERSON, Notary Public of N. J.

[L. S.]

COMMON LAW FORM XVI.-ANSWER UNDER CODE PRACTICE.

[262 Fed. 680.]

District Court of the United States for the Southern District of New York. ANNIE S. SIMONS,

Plaintiff,

against

WILLIAM NELSON CROMWELL, described in the ⚫ summons as Thomas Nelson Cromwell, and LOUIS H. CRAMER, as executors under the Last Will and Testament of Frank Leslie, deceased.

Clerk's Index

No. L 17-20.

The defendant Louis H. Cramer, Executor, by Edgar T. Brackett, his attorney, makes his answer to the complaint herein as follows:

1st. Said defendant admits that the allegations contained in the paragraphs of said amended complaint numbered II, III, IV, and XIII, and that the estate of the testatrix at the time of her death was the value of approximately $1,800,000, and that the testatrix bequeathed to the plaintiff only the sum of $10,000.

2nd. Said defendant denies all of the allegations in the paragraphs of said amended complaint numbered XIV, XVII, XIX and XXII.

3rd. Said defendant denies that he has any knowledge or information sufficient to form a belief as to any of the allegations in said amended complaint contained, except as to those hereinbefore specifically admitted or controverted.

FOR A SECOND, SEPARATE AND DISTINCT DEFENSE TO THE FIRST CAUSE OF ACTION:

4th. The said defendant avers that, excluding from the computation of the time which has elapsed since the accruing of the first alleged cause of action set forth in the amended complaint herein, the period of eighteen months which have elapsed since the death of the said Frank Leslie, the

said alleged cause of action did not accrue within six years next before the commencement of this action.

FOR A THIRD, SEPARATE AND DISTINCT DEFENSE TO THE FIRST CAUSE OF ACTION:

5th. Said defendant avers that the alleged agreement, by its terms, was not to be performed within one year from the making thereof. That no such agreement, or any note or memorandum thereof, was ever made in writing, and subscribed by the said Frank Leslie, whose estate is sought to be charged therewith, or by her lawful agent.

FOR A SECOND, SEPARATE AND PARTIAL DEFENSE TO THE SECOND CAUSE OF ACTION:

6th. Said defendant alleges that as to all services alleged in said second cause of action to have been rendered prior to November 16, 1909, the said cause of action therefor did not accrue within the six years just prior to the commencement of said action, after excluding from the computation of time the period of eighteen months which elapsed immediately after the death of the said Frank Leslie.

FOR A SECOND, SEPARATE AND DISTINCT DEFENSE TO THE THIRD CAUSE OF ACTION:

7th. The said defendant avers that excluding from the computation of the time which has elapsed since the accruing of the second alleged cause of action set forth in the complaint herein, a period of eighteen months which have elapsed since the death of the said Frank Leslie, the said alleged cause of action did not accrue within six years next before the commencement of this action.

FOR A THIRD, SEPARATE AND DISTINCT DEFENSE TO THE THIRD CAUSE OF ACTION:

8th. Said defendant avers that the alleged agreement by its terms was not to be performed within one year from the making thereof; that no such agreement or any note or memorandum thereof, was ever made in writing and subscribed by the said Frank Leslie, whose estate is sought to be charged therewith, or by her lawful agent. FOR A FURTHER AND SEPARATE DEFENSE TO THE FIRST, SECOND AND THIRD ALLEGED CAUSES OF ACTION: 9th. Said defendant alleges that said Frank Leslie died in the City, County and State of New York, on or about the 18th day of September, 1914, being at the time a resident therein, and leaving a last will and testament; that, thereafter, and on or about December 7, 1914, said will was duly admitted to probate by the Surrogates' Court of the County of New York, State of New York, which had jurisdiction in the premises and letters testamentary thereunder were, thereupon, duly issued to the defendants, who thereupon entered upon their duties as such executors and still continue to act as such.

10th. That on or about the 15th day of December, 1915, a proceeding was duly instituted in said Surrogates' Court, which is a court of limited jurisdiction, and has jurisdiction to hear and determine and finally adjudicate all claims of creditors against the estate of a decedent whose will has