courts to reject it, and decide that a requirement for the certificate of the nearest magistrate, etc., may, in case he unjustifiably refuses to act, be met by the certificate of the next nearest. Reference may be made to Agricultural Ins. Co. v. Bemiller, 70 Md. 400, 17 Atl. 380; Walker v. Phoenix Ins. Co., 62 Mo. App. 209; De Land v. Etna Ins. Co., 68 Mo. App. 277; Lang v. Eagle Fire Co., 42 N. Y. Supp. 539, 12 App. Div. 39. The same doctrine is impliedly approved in McNally v. Phoenix Ins. Co., 137 N. Y. 389, 33 N. E. 475. In Noonan v. Hartford Fire Ins. Co., 21 Mo. 81, a distinction is drawn between an absolute refusal of the officer to act, and his furnishing a certificate, but alleging therein his inability to come to any conclusion as to the fairness or amount of the loss. Had he refused without reason to act at all, the insured might have been justified in securing the certificate of some other officer, but not when he acts, and certifies his inability to give the required information. Where a statute forbids the provision altogether," or declares the certificate of any officer of the class designated sufficient, or provides that an unjustifiable refusal of the person designated shall constitute an excuse for nonperformance,' a different rule will prevail. Noone v. Transatlantic Ins. Co., 88 Cal. 152, 26 Pac. 103; Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315; Bailey v. Hope Ins. Co., 56 Me. 474; Vorous v. Phenix Ins. Co., 102 Wis. 76, 78 N. W. 162. 5. PLEADING AND PRACTICE RELATING TO NECESSITY AND SUFFICIENCY OF NOTICE AND PROOFS OF LOSS. (a) Declaration or complaint. (b) Plea or answer. (c) Evidence-Admissibility. (d) Same-Sufficiency. (e) Questions for jury. (f) Trial and review. (a) Declaration or complaint. It is pointed out in Benedix v. German Ins. Co., 78 Wis. 77, 47 N. W. 176, that, where the failure to furnish proofs is made a cause of forfeiture, such failure is a matter of defense, to be taken ad Horner's Ann. St. Ind. 1901. § 3770; Burns' Ann. St. Ind. 1901, § 4923. • Pub. Laws Me. 1861, c. 34, § 5; Rev. St. Wis. 1898, § 1941-55. 7 Civ. Code Cal. § 2637. vantage of by way of answer, so that a complaint would be sufficient without any allegations in relation thereto. But the universal holding is that, where the production of notice and proofs is a condition precedent, plaintiff must allege and prove such production. This rule has, indeed, been rather assumed than held, the decision of the substantive question being treated also as a determination of the manner of pleading. The questions which have arisen have thus been as to the sufficiency of the allegation and denial of the performance of the condition. Where, as in many of the states, it is provided by statute that a compliance with conditions precedent may be pleaded generally, and that defendant must set up the condition which he alleges was not performed, an allegation of performance, drawn in accordance with the statute, will be sufficient. Reference may be made to Ferrer v. Home Mut. Ins. Co., 47 Cal. 416; Blasingame v. Home Ins. Co., 75 Cal. 633, 17 Pac. 925; American Century Ins. Co. v. Sweetser, 116 Ind. 370, 19 N. E. 159; Indiana Ins. Co. v. Pringle, 52 N. E. 821, 21 Ind. App. 559; Hanover Fire Ins. Co. v. Johnson, 26 Ind. App. 122, 57 N. E. 277; Okey v. State Ins. Co., 29 Mo. App. 105; Richardson v. North Missouri Ins. Co., 57 Mo. 413; Rieger v. Mechanics' Ins. Co., 69 Mo. App. 674; Farmers' Bank v. Manchester Assur. Co., 80 S. W. 299, 106 Mo. App. 114; Union Ins. Co. v. McGookey, 33 Ohio St. 555; Schobacher v. Germantown Farmers' Mut. Ins. Co., 59 Wis. 86, 17 N. W. 969; Bank of River Falls v. German-American Ins. Co., 72 Wis. 535, 40 N. W. 506; Benedix v. German Ins. Co., 78 Wis. 77, 47 N. W. 176. But in the absence of statute, or where the statutory method is not followed, the performance must be clearly stated. Royal Ins. Co. v. Smith, 8 Ky. Law Rep. 521; Home Ins. Co. of New York v. Duke, 43 Ind. 418; Fidelity & Casualty Co. of New York v. Sanders, 70 N. E. 167, 32 Ind. App. 448. An allegation that plaintiff "performed all the conditions" will not cure defects in an attempted specific allegation, though the statute permits a general allegation that plaintiff "duly performed all the conditions" (Clemens v. American Fire Ins. Co., 75 N. Y. Supp. 484, 70 App. Div. 435). Likewise, it has been held that a general allegation of compliance with the conditions of the policy will not avail against an express allegation showing that the proofs had not been delivered within the stipulated time (Baker v. German Fire Ins. Co., 124 Ind. 490, 24 N. E. 1041). In California, however, it was held that such conflict only rendered the complaint ambiguous, and that the objection must be taken on such ground (Emery v. Svea Fire Ins. Co., 88 Cal. 300, 26 Pac. 88). And even under the Indiana doctrine the conflict must be evident and necessary. Germania Fire Ins. Co. v. Deckard, 3 Ind. App. 361, 28 N. E. 868; Hanover Fire Ins. Co. v. Johnson, 26 Ind. App. 122, 57 N. E. 277. * * The principle that the conflict must be necessary controlled, also, the cases of District Tp. of Sidney v. Des Moines Ins. Co., 75 Iowa, 647, 36 N. W. 902, and National Wall Paper Co. v. Associated Mfrs.' Mut. Fire Ins. Corp., 70 N. Y. Supp. 124, 60 App. Div. 222, where the allegation that proofs were furnished within a certain. time was held not to be contradicted by another allegation that they were furnished "on or about" a certain date following, just outside the specified time. Likewise, an allegation that "as soon as possible, * that is to say, on the 24th of May" (which was the fourth day after the fire), notice was given, has been held not to preclude evidence that the notice was in fact given on the first day after the loss (Hovey v. American Mut. Ins. Co., 9 N. Y. Super. Ct. 554). And an averment that plaintiff gave notice of loss "within days," and as soon as he discovered it, when construed in connection with an averment that plaintiff performed all conditions to be performed by him, shows a giving of the notice within a reasonable time (Phenix Ins. Co. v. Rogers, 11 Ind. App. 72, 38 N. E. 865). In Young v. Phoenix Ins. Co., 61 N. Y. 650, the policy did not appear in the complaint, nor did the complaint state what the effect would be of a failure to give notice within a specified time. The court held that it could not determine, upon demurrer, that the condition as to proofs, if not complied with, operated to forfeit the policy. Likewise, a declaration alleging that due notice and proof of loss were given according to the conditions of the policy is sufficient to support a judgment, though it is not alleged that the company had due notice and proof according to the requirements of Pub. Laws 1861, c. 34, § 5, where it does not appear that the notice and proof required by statute are materially different from those required by the policy (Conway Fire Ins. Co. v. Sewall, 54 Me. 352). Nevertheless, where it first appeared that the furnishing of the proofs was a condition precedent when plaintiff introduced in evidence the policy as the contract sued upon, defendant at once had the right to take the position that the allegations of the complaint did not authorize a recovery upon such a contract (Furlong v. Agricultural Ins. Co., 64 Hun, 632, 18 N. Y. Supp. 844). An inartistic complaint has, however, been held sufficient, after verdict, to show that proper proofs of loss were given. If the allegation was not sufficiently specific, the remedy was by motion in the trial court. (Phenix Ins. Co. v. Wilson, 132 Ind. 449, 25 N. E. 592.) (b) Plea or answer. In the absence of statute, a general denial is sufficient to put in issue the rendition of proofs of loss. Cornell v. Hope Ins. Co., 3 Mart. N. S. (La.) 223; Donahue v. Windsor In Indiana, also, though there is a statute (Horner's Ann. St. § 370) providing that performance of conditions precedent may be pleaded generally, and that, "if the allegation be denied, the facts showing a performance must be proved," it has been held that a general denial of a complaint containing such general allegation is sufficient to put the service of proofs in issue. The cases so holding, however, make no mention of the statute. Indiana Ins. Co. v. Capehart, 108 Ind. 270, 8 N. E. 285, and Manchester In New York an answer setting out the condition requiring proofs of loss within a specified time, and averring that plaintiff failed to perform such condition has been held a sufficient specification of a particular breach of the condition to meet a general allegation that the plaintiff had fulfilled all the conditions of the policy (Birmingham v. Farmers' Joint Stock Ins. Co., 67 Barb. 595). The Pennsylvania rule, on the other hand, is that the specifications of defense must state wherein the proofs furnished were defective (Moore v. Susquehanna Mut. Fire Ins. Co., 46 Atl. 266, 196 Pa. 30). In Maine this matter has been governed by the rule of court providing that parties filing specification of the grounds of defense should be confined to such grounds, and that all matters set forth in the writ and declaration, which were not specifically denied, should be regarded as admitted. Fox v. Conway Fire Ins. Co., 53 Me. 107; Caston v. Monmouth M. F. If plaintiff, ignoring his statutory rights to general allegations and defendant's duty to specially plead nonperformance, himself specifically alleges performance, and defendant denies, this will put the matter in issue (Brock v. Des Moines Ins. Co., 96 Iowa, 39, 64 N. W. 685). And if plaintiff alleges the mailing of notice as required by the policy, and defendant denies, not only the fact of the mailing, but the sufficiency of the notice, will be in issue (Heusinkveld v. St. Paul Fire & Marine Ins. Co., 106 Iowa, 229, 76 N. W. 696). So, also, where, without necessity, plaintiff attempts to make proof of compliance with the condition, and fails, the situation will be the same as if defendant had pleaded such nonperformance (Adkins v. Globe Fire Ins. Co., 32 S. E. 194, 45 W. Va. 384). A denial of compliance with the terms of the policy, as stated in the complaint (Schaetzel v. Germantown Farmers' Mut. Fire Ins. Co., 22 Wis. 412), or that plaintiff furnished a sufficient proof (Germania Ins. Co. v. Ashby, 23 Ky. Law Rep. 1564, 65 S. W. 611, 112 Ky. 303, 99 Am. St. Rep. 295), may be held to amount to an admission of compliance otherwise than as stated. So, also, in Rieger v. Mechanics' Ins. Co., 69 Mo. App. 674, an allegation of an election by the company to repair, only open to it after proofs had been furnished, was considered an admission that due proofs had been received. Somewhat similar is the case of Loomis v. Lewis, 71 N. Y. Supp. 62, 62 App. Div. 433. The complaint mentioned no time within which the notice must be furnished. The answer set up that the notice was to be furnished within a certain time, which had not been done, and suggested a reference to the policy for greater certainty as to the conditions. On the trial no reference was made to the policy, and the court held that this amounted to an admission of the contract as alleged by the plaintiff. Where the allegation of nonperformance was treated as a plea in abatement, it was held that it could not be pleaded with a plea of forfeiture for fraud. Weide v. Germania Ins. Co., 29 Fed. Cas. 594; Wiede v. Insurance Co. of North America, Id. 1149. But see, also, in this connection, Gross v. St. Paul Fire & Marine Ins. Co. (C. C.) 22 Fed. 74, and Home Fire Ins. Co. v. Decker, 55 Neb. 346, 75 N. W. 841, where a defense that the fire was of an incendiary character, and plaintiff implicated therein, was held not inconsistent with a plea setting up breach of the condition as to proofs. It is pointed out in Harriman v. Queen Ins. Co., 49 Wis. 71, 5 N. W. 12, that no special plea in abatement need be filed. The |