Co., stilI this court cannot take jurisdiction of the supplemental bill, because it presents a controversy petween two Colorado corporations, and which was not a part of the original suit in the sense of being between the same parties or their privies. My conclusion is that this court cannot take jurisdiction of the supplemental bill for the purpose of enforcing as against the respondent any right of Wells, Fargo & Co" either alone or jointly with complainant, and the motion for leave to file the proposed supplemental bill is accordingly overruled. Upon the second question (the motion to dismiss the bill) it is only necessary to say that the complainant may be entitled to somemeasui'e of relief, notwithstanding the contract between Wells, Fargo & Co., and even if said contract should be construed in accordance with the respondent's claim. I suppose that at least some question as to the compensation to be paid the respondent for the privilege of carrying On the express business in the past may remain to be adon the final hearing; Whether any other or further relief can be granted to the complainant, is not now to be considered. The mation to dismiss is overruled.
After theaeclsion was pronounced, Wells, Fargo & Co. tiled a new bi1tpre-senting certain questions of jurisdiction, which the court ordered to be first heard; but; on the day preceding the time set for argument, all matters in controversy were amicably adjusted,-Wells, Fargo & Co. securing ,full express facilities upon those parts of the >road necessary for through business, and satisfactory rates between other points, leaving the local business to be· done by the railroad exoress.-r.ED.
CONTINENTAL LIFE INS.
(Owcuit Oourt, D. Vermont. May. 29, 1883.)
1. PLEADmGs-ANBWltR BY CORPORATION, BY WHOM SHOULD BE MADE, AJroo
In a, suit against a corporation the anewe.r ,should be made by the principal I'lfllcer of the corporation, who able to admit or deny the facts and interrogated about, or to state want of knowledge clearly and' ,ruly as a reason for not doing either.
The answer stated a Qlllief otthe secretary, making answer, that a cerl ain pamphlet or leaflet like that described. in tbe bill was delivered to agents, but does not directly admit or deny the furnishingof such to its agent who illsurell
HALE V. OONTINENTAL LIFE INS. 00.
the orator, and stated no want of knowledge of the other officers of the companr as to these facts. Held, insufficient answer, on the ground that it should have distinctly stated one way or the other, according to the facts.
In Equity. Gilbert A. Davis, for plaintiff. Charles W. Porter, for defendant. WHEELER, J. The anBwer aB amended is Btill insufficient to with. stand the orator'B exceptionB. The answer Bhould be made by the principal officer of the defendant corporation, who Bhould be able .to admit or deny the facts charged and interrogated or to Btate want of knowledge clearly and truly aB a reaBon for not doing either. This anBwer BtateB a belief of the secretary making anBwer that a pamphlet or leaflet like that described in the bill waB delivered to agentB, but'does not directly admit or deny the furnishing. of such to its agent Hale, who inBured the orator; nor does it Btate any want of knowledge of the other officers of the company as to these facts. This Bhould be distinctly stated one way or the other, according to the facts . . The purport of the whole bill seems to be to the effect that the orator waB to share in the, profits by being credited with aB many and that he paid five. The dividendB as he paid annual amount of dividends from 1867 to 1871, the time during which he paid premiums, iB stated in the answer, and is stated to be large .enough to cancel the notes, and this would be sufficient if those were the ones he is entitled to have oredjt for to apply on the noteB. ' But it -does not seem proper to decide, in thiB interlocntory proceeding, whether these are the ones to which he is'so entitled or not. There are some strong reasons for holding that they are not. The answer ·doeB not state either the dividends to the same class, 110r the profits from which dividendB might have b(len made, if they were not for the fOlfr years nex.t after 1871. These Bhouldbe clearly Btated. The statement of dividends to BtockholderB is not pertinent to and does not at all answer the cha.rges in the bill and the interrogatories founded thereon. Neither does the Btatement about changes of the mode of doing thiB busineBs by this and othel' companies. . The orator does not appear to be intereBted in these dividends or profitB beyond the four years next following the year 187:1., in which the dividend for that year was applied to the ex.tinguiBhment of tile note part of the premium for·tbat year. The policy was,not lay""Cl, 11B the defendant claimB, for, by its terms, it was in force as to part .of the sum due. Neither was it in force for earning any divi·
dends than there were premiums paid, as the orator claims. But it was in force as a policy for the amount due by its terms, and for earning four more dividends than the defendant applied to it. The data for the determination of the amount of those dividends should be stated in the answer as arising in the four years next after 1871, if they can be; and the reasons why they cannot be, if they cannot be, should be stated clearly and distinctly. The exceptions are again sustained, and defendant ordered to answer over by July rule-day.
SHEElRER, Guardian, v. ¥ANHATTAN LIFE INS. Co.·
Oircuit Court, D. Kentucky.
INSURANCE-CONSTRUCTION OF POLICY.
, Insurance policies are to be construed most strictly against the companies.
In a stipulation in 8 policy that the policy shall determine if the premium be not paid" on or before the day" fixed, time is of the essence of the contract, and the policy determines if the premium be not paid on or before the day.
But where the company, by a separate instrument, afterwards agreed, after the payment of three annual premiums, to issue a paid-up policy for a proportionate amount, on the surrender of the policy to the company" on or before it shall expire by the non-payment of the fourth or any subsequent annual premium," the time of the surrender is not of the essence of the contract, and specific performance will be decreed if the surrender is made i<n a reasonable time.
BARR, J. The defendant, the Manhattan Life Insurance Company, issued, on the ninth of May, 1866, a policy insuring the life of William F. Duerson for the benefit of his wife, Sallie W. Duerson, and for her sole and separate use, if she survived her husband; if not, then the insurance money was to go to her children. This policy was for $10,000, payable at the death of William F. Duerson, and the premiums were to be paid in 10 annual payments. The policy provided"That the Manhattan Life Insurance Company, in consideration of the sum of $491.40, to them in himd paid by Mrs. Sallie W. Duerson, * * * and of the annual premium of $491.4:0, to be paid on or before the ninth day of May (or half or quarter yearly in advance, with interest) in every >'ear, for nine
"Reported by Geo. Du lle Ie, Asst. U. S Atty.