Page:Federal Reporter, 1st Series, Volume 8.djvu/658

 64.4 FEDERAL REPORTER. �CoLT, D. J. This is an action upon a policy of fire insurance. Tiie question before us arises under a demurrer filed by the defend- ant to the first count in the plaintiff's declaration. The main points raised by the demurrer are whether the count contains sufficient averments^First, as to the particular account of loss ; and, second, as to the magistrate's certificate required to be given by the policy. �The declaration, following out the terms of the policy, alleges, among other things, that the loss was payable — �"Sixty days after notice and pr.oof of the same, upon condition that the plain- tiffs, in case of such loss, fortliwith gave notice of said loss to the company, and shall, within 30 days, render a particular account of such loss, signed and sworn to by them, stating ■whether any and what other Insurance has been made on the property, what was the value thereof, what was the plaintiff's interest therein, in what general manner said barn was occupied at the time of said flre, also were the occupants the same, and when and how the flre orig- inated, as far as they knew or belle ved; and should procure a certificate under the hand and seal of a magistrate or notary public most contlguous to the place of the flre, and not concerned in the loss as a crediter of the plaintifEs or otherwise, or related to them, stating that he has examined the circum- stances attending the loss, knows the character and circumstances of the assured, and does verily believe that they have, by misfortune, and without fraud or evil practice, sustained loss and damage on the property insured to the amount of sixhundred and nineteen dollars and seventy-five cents, ($619.75.)" �The plaintiffs aver the performance of these conditions, as follows : �"Of which loss the plaintiffs forthwith gave notice to said company, and, as soon as possible after said loss, to-wit, within 30 days after said loss, to- wit, on the twenty-third day of October, A. D. 1880, rendered the, defendant R particular account of said loss, under their hands and verifled by their oaths, and did also declare that no other Insurance was made upon said property, and at the same time procured the certificate under the hand and seal of Fred- erick A. Warner, a magistrate having a seal most contlguous to the place of the flre, not concerned in said loss as a crediter or otherwise, or related to the plaintiffs, and from inquiries made by him into the circumstances and origin of said flre and as to the value of the property destroyed, and he verily be- lieved that the plaintiffs really and by misfortune, and without fraud or evU practice, had sustained by said flre loss and damage to the amount of the sum of six hundred and nineteen dollars and seventy-five cents, ($619.75 ;) and the plaintiffs on the same day forwarded to the defendants, at their office at ^No. 54 William street, New York city, said certificate. And the plaintiffs f urther aver that thereafterwards, to-wit, on the sixteenth day of ITovember, 1880, and at the request of the said defendants, did procure another certificate of Ben- jamin M. Bosworth, Jr., a magistrate having a seal and being nearest to the place of the fire, not concerned in the loss as a crediter or otherwise, or related to the plaintiffs, and from inquiries made by him into the circumstances and origin of said fire and as to the value of the property destroyed, and he verily ��� �