Page:Federal Reporter, 1st Series, Volume 1.djvu/201

 MACK V. LANCASHIKE INS. CO. 1&3 �Mack and others v. Lanoashiee Ins. Co. �{Circuit Court, E. B. Missouri. , 1880.) �Fleadino— Akswee — GknbraIj Deniai.. — Under the rules of pleading establLslicd by the atate of Missouri, as modifled by the act of 1875. afBnnative matters of defence caaiiot be set up uuder a peneral deniai. �Demurrer to answer. �Nohle (& Orrick, for plaintiffs. �0. B. Sansum and B. Gratz Brown, for defendant. �Treat, J., [orally.) There is a demurrer to the second connt of the answer. In the course of the argument I directed the attention of counsel to a great many matters, not because this case involved ail of the inquiries suggested, but to get their assistance in order that I migbt settle, as far as is practicable, in my ownmind, the rules of pleading under the statute of the state. I should like to write an opinion as to the effect of the state act of 1875, but I think I can state my views iutel- ligibly. Here is an action under a fire policy containing many provisions. The cnly point under consideration is, how must the pleadings in this case, under the rules of plead- ing estabîished by the state, as modified by the act of 1875, be made up? The plaintiffs here aver a contract under the terms of, whieh they, having done certain things, are entitled to recover. There are warrauties and other matters eontained in the policy which constitute substantive matters of defence, and M'hich the party can set up, whareby he can defeat the right of recovery. How shall those matters be set up? �The state statute of 1875 permits, instead of a specifie dei ial as to each of the allegations, a general deniai; but it ( 063 not, and I wish this distinction understood as the rule of the court, it does not permit, under a general deniai, affirmative matters of defence to be set up. But if a party bas an alfirmative matter of defence to be set up, as to a breach of warranty or other matters of that kind, which may occur under a policy, he must set them up afSrmatively and Beparately. Let me illustrate : This is an ordinary form of a declaration on a fire policy ; the policy is set ont ; the plain- v.l.no.4— 13 ��� �