have no right to relief in the manner proposed, even had they shown good ground therefor. I reach this conclusion with the less hesitation because it appears, from the affidavits read, that the petitioners now have in active sympathy and co-operation with them a majority of the board of directors, and, of course, have it in their power to control the corporation and be heard in court through it.

I might here stop with a simple order dismissing the petition, but the case is so peculiar that I feel called on to add some additional observations.

It was said by counsel for one of the judgment creditors that the court should itself take notice that the case is one not within the jurisdiction of the court. But I do not agree with the counsel upon the question of jurisdiction. By section 563 of the Revised Statutes the United States district courts have jurisdiction, inter alia, "of all suits by or against any association established under any law providing for national banking associations within the district within which the court is held."

But while of opinion that the controversy is within the jurisdiction of this court, I am very sure a receiver of the defendant corporation would never have been appointed had the court been in possession of all the facts which have been developed upon the present hearing. It is now plain that the rights of the plaintiff were not of such a character and were not in such jeopardy as to call for a remedy so extraordinary as the appointment of a receiver. Had any opposition been made by the defendants, clearly the court would have refused such appointment. In fact, it now for the first time appears that the corporation defendant acquiesced in, if it did not secretly promote, the appointment of a receiver in its own interests. This was not apparent to the court when the appointment was made.

At that time there was a contest for the office of receivership between the stockholders, some favoring Mr. Martin, others Mr. Bailey. The former was appointed. I do not find he has been guilty of any act of commission or omission since his apppointment calling for his removal for cause.

No one having a proper standing in court has asked the court to rescind the order appointing a receiver, and I do not think the court of its own motion is called upon to make such order.

But creditors of the corporation wul no longer be hindered in bringing suits or proceeding by execution against it. Leave will be and is hereby granted to them to proceed by suit and execution.

This permission, however, is subject to a qualification in the case of M. B. Thompson, Jane Reamer, Minerva H. Rahauser, Jane Redman and Margaret Reamer. These parties. proceeded in the common pleas court, No. 2, against the Pittsburgh & Castle Shannon Railroad Company and the receiver, by an action of ejectment, in clear contempt of the authority of this court. A subsequent application was made to this court to sustain that suit, but this was refused. I have been asked to reconsider the action of the court in this regard, and I was, at first, disposed to do so; but upon reflection I have concluded not to disturb the former order of the court. But leave is now granted to said parties to bring and prosecute to judgment and execution a new action of ejectment, or such other suits as may be appropriate to their

case.

Petition dismissed.

MACK and others v. LANCASHIRE INS. Co.

(Circuit Court, E. D. Missouri.

1880.)

PLEADING ANSWER-GENERAL DENIAL.-Under the rules of pleading established by the state of Missouri, as modified by the act of 1875, affirmative matters of defence cannot be set up under a general denial.

Demurrer to answer.

Noble & Orrick, for plaintiffs.

O. B. Sansum and B. Gratz Brown, for defendant.

TREAT, J., (orally.) There is a demurrer to the second count 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 all of the inquiries suggested, but to get their assistance in order that I might settle, as far as is practicable, in my own mind, 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 intelligibly. Here is an action under a fire policy containing many provisions. The only point under consideration is, how must the pleadings in this case, under the rules of pleading established by the state, as modified by the act of 1875, be made up? The plaintiffs here aver a contract under the terms of which they, having done certain things, are entitled to recover. There are warranties and other matters contained. in the policy which constitute substantive matters of defence, and which the party can set up, whereby he can defeat the right of recovery. How shall those matters be set up?

The state statute of 1875 permits, instead of a specific de ial as to each of the allegations, a general denial; but it does not, and I wish this distinction understood as the rule of the court, it does not permit, under a general denial, affirmative matters of defence to be set up. But if a party has an affirmative 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 affirmatively and separately. Let me illustrate: This is an ordinary form of a declaration on a fire policy; the policy is set out; the plainv.1,no.4-13

tiff avers loss, notice, proof of loss, etc. That is all he is required to do. The answer says: "And the said defendants, for further answer to the matters and things in the said plaintiff's petition stated and set forth, say that they admit that they are a body corporate under the laws of the United Kingdom of Great Britain and Ireland; they admit that they are prosecuting the business of fire insurance in the said state of Missouri; they admit that they made and delivered to the firm of Mack & Co. the several policies of insurance filed as exhibits 'A' and 'B' in said case, to insure the said firm" for the period of one year from 1878, terminating in 1879; "they admit that some goods of the description in the said several policies mentioned were damaged and consumed by fire on the fourth day of April, in the year A. D. 1879; they admit that the plaintiffs gave defendants due and proper notice of said fire; they admit that on the twelfth day of May, in the year last aforesaid, plaintiffs delivered to defendants certain papers called preliminary proofs of their alleged loss and damage, in the proofs stated and set forth, as they have in said petition stated and set forth; that they had in said building, at the time said fire occurred, goods of the description in said policy mentioned, the property of the plaintiffs, of the value of $78,219.32; but defendants deny that the goods so damaged and consumed by said fire were of the value stated by the plaintiffs; and, on the contrary thereof, the defendants say that the whole value of said goods so consumed and damaged by said fire did not exceed the sum of $48,000, of which the defendants then and there gave notice to plaintiffs," that is a defence pro tanto,-"and defendants offered to fix said loss and damage with the plaintiffs at the sum of $48,000, but the plaintiffs refused to fix said loss and damage at said last mentioned sum, and persisted in claiming that at the time said fire occurred said goods were of the value of $78,219.32; and the defendants say that as to all other matters and things in said petition stated and set forth the defendants deny the same, and each and every allegation thereof, in manner and form, as the same are in said petition stated and set forth." I presume that last clause was out of abun

dant caution.

Every allegation is specifically admitted here on which the plaintiffs' right to recover exists; and the issue is on the affirmative matter of defence.

"For a further and second defence to the matters and things in said petition stated and set forth, defendants say that said policies were made and delivered to plaintiffs upon condition that plaintiffs would faithfully observe, perform and keep certain conditions and stipulations in said policy stated and set forth."

[Here followed 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 what 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 cut out of the policy not only matters going to defeat the right of recovery-such as provisions as to warranty, etc., subsequent to the beginning of the policy-but also conditions precedent which are put in issue by his denial. Yet go a little deeper. "Defendants aver that, as to all of said stipulations and conditions, except the giving to defendants notice of said fire, plaintiffs have neglected and refused to perform and observe the same, and that all 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 plaintiffs." What? The plaintiffs are entitled to recover on the face of their pleadings unless something else has happened which is an affirmative matter of defence. Now, in the defendant's pleading all those matters of affirmative defence are