18 Wis. 234 | Wis. | 1864
By the Court,
We consider the portion of the answer demurred to as clearly insufficient in setting forth a complete defense to the action, for reasons which were anticipated
Again, the appellant contends that if the answer is not sufficient as a total defense, it is good as a partial defense to the action. But the difficulty with this position is, that this portion of the answer professes and assumes to answer the entire cause of action. It is not relied on as a partial but as a complete defense, and we have seen that for this purpose it is insufficient. Now under the old system, where a plea professed in its commencement to answer the whole cause of action, and after-wards answered only a part, the whole plea was bad. This rule was elementary; and, upon general principles, we do not see why it is not applicable to pleadings under the code. If a party has a partial defense to an action, he should set it up and rely on it as such, and not as a complete and entire defense.
It is further claimed that it was incumbent on the plaintiff to state' in the complaint that, before issuing the policy sued on, the defendant had complied with the laws of this state requiring foreign insurance companies to make and file certain statements with the secretary of state and obtain his certificate of authority, &c. See Laws of 1859, chap. 190. We do not think such an averment necessary. If the policy is void because issued contrary to law, it is a proper matter of defense. It is not fair to assume that the company, in the transaction of of its business, has been violating the laws of this state, but the contrary presumption arises.
We think the demurrer was properly sustained, and the order of the circuit court is therefore affirmed.