Emmons v. Home Insurance

Borp, C. J:—

It was an act of special caution on the part of the defendant to make this special plea, but it will be noted that the plaintiff is bound to aver in his narr and negative these conditions, and he has so negatived the same. The general issue raises distinctly that specific question, and your special plea only duplicates it. And we are therefore very clear that it ought to go out and that you can prove this matter under the general issue. There is no doubt about it.

We therefore make the order to strike out the second plea.