Page:Federal Reporter, 1st Series, Volume 8.djvu/660

646 FEDERAL REPORTER. �Chitty on Pleading, vol. 1, p.;327, says : "The omission of aver- ment of performance of a condition precedent, or of an excuse for the non-performance, is fatal on demurrer." See, also. Home Ins. Co.v. Duke, 43 Ind. 4-18; DolUer v. Agricultural Ins. Co. 67 Me. 180. The plaintiffs contend, however, that the subsequent general averment that they have performed all things by them to be performed by thj terms of the contract is of itself sufficient. But the rule of the com- mon law, as establiahed by the foregoing and other authorities, is clearly the other way. That rule is as Chitty expresses it, (p. 985, note k:) "But if there be anything specifie or particular in the thing to be performed, though consisting of a number of acts, performances of each must be particularly stated." �The plaintiffs also argue that it was not necessary for them to aver performance of the various provisions which by the terms of tho policy are required to be stated in the particular account, but that their simple allegation that they have rendered the defendant a par- ticular account is sufficient. The policy declares that the particular account must contain statements as to other Insurance, value of property, interest of assured, manner the building was oecupied at time of fire, who were the occupants, when and how the tire origi- nated. Now it can hardly be said that an averment of performance which simply states that a particular account has been rendered, and only affirming one of the particulars, that relating to other insurance, is enough ; because, from all that appears, the account may not have contained anything relating to the other material facts, and conse- quently upon the face of the declaration a case has not been made out. �It was held in Catlin y. Spr'mgfield Ins. Co. 1 Sumn. 434, that the words "a particular account of such loss or damage" meant, of themselves, simply a particular account of the articles lost or dam- aged, and in no way referred to the manner or cause of loss. The legal import, therefore, of these words does not embrace the other important facts called for under this head by this policy, and we are forced, therefore, to the conclusion that the allegation is ii^sufficient. There can be no question but what the magistrate's certificate must be such as the condition requires. Columbian Ins. Co. v. Laivrence, 2 Pet. 50; Johnson v. Phœnix Ins. Co. 112 Mass. 49. �By the failure in this case to aver knowledge of the charaoter and circumstances of the assured, as laid down in the policy, the condi- tion is not complied with. The demurrer is, therefore, sustai:.ed. ��� �