Page:Federal Reporter, 1st Series, Volume 1.djvu/203

 MACK V. LANCASHIRE INS. CO. 195 �dant caution. Every allegation is specifie ally admitted here on 'which the plaintiffs' right to recover exista; and the issue is on the affirmative matter of defence. �"For a further and second defence to the matters and things in said petition staied and set forth, defendants say that said policies were made and delivered to plaintiffs upon condition that plaintiffs would faithfuUy observe, perform and keep certain conditions and stipulations in said policy stated and set forth." �[Here foUowed a' large number of conditions common to fire policies.] �They are conditions precedent and subsequent, put into one general allegation. Now I hold that, under the practice of the state courts, no such pleading is admissible. It would be a very sad thing if it were. If a party has any defence on which he relies, the statute requires that he shall set it up as a matter of defence separately — each by itself. They go to defeat the right of recovery. defendant admits that vAat the plaintiffs have stated is correct, but yet sets forth that there are other matters, despite what they have stated, which go to defeat their right of recovery. And each of those must be specifically set up — not in gross. If the defendant will look at his pleading he will find that he has eut out of the policy not only matters going to defeat the right of recovery — such as provisions as to warranty, etc., subsequent to the begin- ning of the policy — but also conditions precedent which are put in issue by his deniai. Yet go a little deeper. "Defend- ants aver that, as to ail of said stipulations and conditions, except the giving to defendants notice of said fire, plaintiffs bave neglected and refused to perform and observe the same, and that ail of said conditions and stipulations, except the giving of said notice of said fire to said defendants, remain unperformed, unobserved, and wholly disregarded by the plain- tiffs." What? The plaintiffs are entitled to recover on the face of their pleadings unless something else has happened which is an af&rmative matter of defence. Now, in the de- fendant's pleading ail those matters of affirmative defence are ��� �