Page:Federal Reporter, 1st Series, Volume 7.djvu/316

 S04 FliDEBAL BEFOBTEB. �plainant fonnally offered to receipt and transmit his policy to the Company, and requested the issuance of a paid-up policy to him, or an opportunity to pay the back premiums then unpald. The company de- clined to comply with either of these requests, on the grouud that the notices before mentioned were duly sent; that the complainant was ad- vised of the situation of ailairs when the prooeedings against the com- pany were pending, and failed to seasonably talieany steps either to Iceep his policy in force, or by receipt and transmission of the same to procure a paid-up policy. The complainant, in his testimony, says that he did not receipt and transmit the policy within 60 days af ter August 23, 1877, because he did not think the company was in existence, and because he had no instructions so to do. �Upon this staie of facts it is contended in bebalf of the complainant that by the payment of nine years' premiuma he purchased paid-up insurance totheamount of |600; that the transmission and receipt of the policy within sixty days after default in any payment of premium was not a condi- tion precedent to the right to have a paid-up policy; that by the proceedings against the company in New York it was then disabled to issue such a policy, even if the original pol- icy had been receipted and transmitted within the sixty days, and therefore strict performance of the condition by the complainant was excused; that, under all the circumstances, the ultimate offer to receipt and return the policy, and the de- mand of a paid-up policy, were seasonably made ; and that the court ought not to make such a decree as would operate to enforce a forfeiture of the complainant's rights under his policy. The grounds for relief thus urged are all combated by counsel for defendant, who insists that time was of the essence of the condition requiring transmission and receipt of the pol- icy within sixty days after default in the payment of any pre- mium; that by the failure to make payment, and then the further failure to receipt and transmit the policy within the required time, the policy lapsed, and all right to a paid-up policy was lost ; that the temporary disability of the company did not excuse non-compliance with the condition requiring action on the part of the insured within the prescribed time ; and that the offer to receipt and return the policy after such disability was removed was not seasonably made. �The case bas been argued rather upon bare propositions of ��� �