ditions and provisions, and the plaintiff has alleged that they were complied with. The defendant has denied it. That makes the issue upon everyone of the provisions. It is necessary that the plaintiff should show by preponderance of testimony that the conditions have been complied with. So that we are unable to say, because there is not a special defence that this particular provision was not complied with, that therefore the defendant cannot avail itself of that defence. It is said that because the beneficiaries here are minors that therefore the condition cannot be enforced. I have been unable to find any authority in support of that proposition, and it seems the coun· sel has not instanced any. A guardian can bring the suit, and is bound to bring it under the contract and according to the contract. It is not a suit that cannot be brought. It is not a suit that the parties, by reason of their disability, cannot bring; but it is a suit which the guardian can .bring, and is bound to bring, I think, in accordance with the terms of the contract. If I could see my way clear to rule otherwise, I confess I should be glad to do it, because I have not much sympathy with this sort of defence in a suit of this kind; but the law being as it is, I think the instruction will have to be given. Judge McCrary then charged the jury \1S follows:
The jury are instructed that one of the conditions of the policy here sued on is that no suit shall be brought on this policy unless brought within one year after the death of the person whose life is insured, and it devolves on the plaintiff to show that the suit was brought within one year after the time when Mary Kate Byrnes died, and unless they have so shown then they cannot recover in this action.
Whereupon the plaintiff took a nonsuit.
KIUFEKE t1. MEROHANTS' DISPATOH TRANSP.
(Circuit Oourt, E. D. Missouri.
Mo. § 3489.
PRACTICE-·SERVICE OF SUMMONS-RETURN-REV. ST.
Where a foreign corporation is served with summons under a statute provid. ing that service in such cases may be by delivering a copy of the writ and peti. tion to any officer or agent of such company "in charge of any office or place of business" that it may have, the return of service should state that a copy of the writ and the petition were delivered to an officer or agent in charge of a1l> office or place of business of the defendant.
"Reported by B. F. Rex, Esq., of the st. Louis bar.
MERCHANTS' DISPATCH TRANSP. CO.
The defendant in this case is a corporation organized under the laws.of the state of New York. The return of service of summons indorsed upon the writ by the marshal is as follows:
"United States of America, Eastern District of Missou1'i-sct.
"I return on this writ that I have served the same on the within named, the Merchants' Dispatch Transportation Company, a corporation, by delivering a copy of this writ, together with a copy of the petition thereto attached, to J. M. Stuve, the agent of the aforesaid company, (the president and vicepresident being non-residents of this district and could not be found,) at said company's office in St. Louis, in the above district, on March 4, 1882. .. F. COSTE, United States Marshal," etc. The other material facts are sufficiently stated in the opinion of the court. G. M. Stewart and Paul Bakewell, for plaintiff. 8. M. Breckenridge, for defendant. TREAT, D. J. The defendant has filed a motion to quash the marshal's return of service, supported by an affidavit. The parties have treated said motion as if it were a plea of abatement, to which the plaintiff interposes a demurrer. 1. Was the service made in conformity with section 3489 of the Revised Statutes of Missouri? The return fails to state that the alleged agent of the d8fendant, a foreign or non-resident corporation, was an agent in charge of an ojfice or place of busine88 of defendant. The statute prescribes that where the defendant is a corporation organized under the laws of any other state or country, "and having an office or doing business in this state," the service may be made "by delivering a. copy of the writ" and petition to any officer or agent of such corporation or company in charge of any office or place of business" of the defendant. The return being defective in that respect, t,he motion to quash is well taken. 2. The more important question was intended to be raised, to-wit: If the return was not defective, but false, could the defendant impeach the return by plea in abatement submitting the facts de hor8 the record to a trial of the issue thus raised? The doctrine that a return cannot be so impeached in a domestic judgment, although it may be in a foreign judgment, has received the sanction of many courts, and of none in more decided tenns than by the supreme court of Missouri. This court does not pass upon that qnestion in this ease; for on the ruling as to the first point the service is defective, and therefor/) a decision on the second is not necessary. It may be
that the weight of authority as to the latter question is largely with the demurrant; yet the reason for Buch a ruling may not, on full review and mature deliberation, be held either satisfactory or con. elusive. But nothing is now decided in that regard. After proper service, if such a plea is interposed, the conrt will pass upon it; hence the only entry now will be that the motion to quash is sustained, with leave to amend.
PROVIDENCE & STONINGTON STEA.MSHIP Co. v. VIRGINIA FIRE MARINE INS. Co."
(Circuit Court,8. D. New York.
March 13, 1882.)
PUBLIC OFFICER-TRUST FUlms--LIABILITY FOR.
A public officer, charged with a trust created liY a puhlic statute In respect to funds in his possess;on, cannot be made liable in respect to them lJr au attachment in favor of a person not claiming nnd!'], the tl'llst
Under the requirements of a statute of the slate of New York, defendant, a Virginia corporation, had deposited certain bouds with the superintendent of insurance, to be held to pay liabilitie, upon insurance policies made in favor of citizens of New York, which said bonds were to lJe returned to defendant by said superintendent upon satisfactory evidence that all such liabilities had been satisfied or terminated. Plaintiff, a Rhode Island corporation, brought suit on a policy of insurance issued to it by defendant, and levied an attachment upon the bonds in the hands of the superintendent. Held, upon a motion to vacate attachment, that the bonds were not subject to such levy, they being held by a public officer by authority of law under a specified trust, in which plaintiff's claim was not included.
Motion to Vacate Attachment. Wilhelmu8 Mynderse, for the motion. Wheeler H. Peckham, opposed. BLATCHFORD, C. J. The plaintiff is a Rhode Island rorporation. The defendant is a Virginia corporation. This suit is brought to recover $5,000 on a policy of marine insurance, issued by the defendant to the plaintiff, insuring a steamer against marine perils. It was brought in a court of the state of New York, and removed into this court. On the bringing of the suit in September, 1880, the state court issued an attachment against the property of the defendant as a foreign corporation having property within the state of New York, and it was levied on $10,000 of United States 4 per cent. registered
*Reported by S. Nelson White, Esq., of the New York bar.