nal offenses, the court expressed its views through Mr. Justice Strong, quoting from the case of Martin v. Hunter, 1 Wheat. 363, the following language: "The general government must cease to exist whenever it loses the power of protecting itself in the exercise of its constitutional powers; " and then proceeding: "It can act only through its officers and agents, and they must act within the States. If, when thus acting, and within the scope of their authority, those officers can be arrested and brought to trial in a State court, for an alleged offense against the law of the State, yet warranted by the Federal authority they possess, and if the general government is powerless to interfere at once for their protection, if their protection must be left to the action of the State court, the operations of the general government may at any time be arrested at the will of one of its members. The legislation of a State may be unfriendly. It may affix penalties to acts done under the immediate direction of the National government, and in obedience to its laws. It may deny the authority conferred by those laws. The State court may administer not only the laws of the State, but equally Federal law, in such a manner as to paralyze the operations of the government. And even if, after trial and final judgment in the State court, the case can be brought into the United States court for review, the officer is withdrawn from the discharge of his duty during the pendency of the prosecution, and the exercise of acknowledged Federal power arrested. We do not think such an element of weakness is to be found in the Constitution. The United States is a government with authority extending over the whole territory of the Union, acting upon the States and the people of the States. While it is limited in the number of its powers, so far as its sovereignty extends it is supreme. No State government can exclude it from the exercise of any authority conferred upon it by the Constitution, obstruct its authorized officers against its will, or withhold from it, for a moment, the cognizance of any subject which that instrument has committed to it." To cite all the cases in which this principle of the supremacy of the government of the United States, in the exercise of all the powers conferred upon it by the Constitution, is maintained, would be an endless task. We have selected these as being the most forcible expressions of the views of the court, having a direct reference to the nature of the case before us. Where then are we to look for the protection which we have shown Judge Field was entitled to when engaged in the discharge of his official duties? Not to the courts of the United States; because, as has been more than once said in this court, in the division of the powers of government between the three great departments, executive, legislative and judicial, the judicial is the weakest for the purposes of self-protection and for the enforcement of the powers which it exercises. The ministerial officers through whom its commands must be executed are marshals of the United States, and belong emphatically to the executive department of the government. They are appointed by the president, with the advice and consent of the Senate. They are removable from office at his pleasure. They are subjected by act of Congress to the supervision and control of the department of justice, in the hands of one of the cabinet officers of the president, and their compensation is provided by acts of Congress. The same may be said of the district attorneys of the United States, who prosecute and defend the claims of the government in the courts. The legislative branch of the government can only protect the judicial officers by the enactment of laws for that purpose, and the argument we are now combatting assumes that no such law has been passed by Congress. If we turn to the executive department of the gov ernment, we find a very different condition of affairs. The Constitution, section 3, article 2, declares that the President shall take care that the laws be faithfully executed," and he is provided with the means of fulfilling this obligation by his authority to commission all the officers of the United States, and by and with the advice and consent of the Senate, to appoint the most important of them and to fill vacancies. He is declared to be commander-in-chief of the army and navy of the United States. The duties which are thus imposed upon him he is further enabled to perform by the recognition in the Constitution, and the creation by acts of Congress, of executive departments, which are varied in number from four or five to seven or eight, who are familiarly called cabinet ministers. These aid him in the performance of the great duties of his office, and represent him in a thousand acts to which it can hardly be supposed his personal attention is called, and thus he is enabled to fulfill the duty of his great department, expressed in the phrase that "he shall take care that the laws be faithfully executed." Is this duty limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution? One of the most remarkable episodes in the history of our foreign relations, and which has become an attractive historical incident, is the Case of Martin Koszta, a native of Hungary, who though not fully a naturalized citizen of the United States, had in due form of law made his declaration of intention to become a citizen. While in Smyrna he was seized by command of the Austrian consul-general at that place and carried on board the Hussar, an Austrian vessel, where he was held in close confinement. Captain Ingraham, in command of the American sloop of war St. Louis, arriving in port at that critical period, and ascertaining that Koszta had with him his naturalization papers, demanded his surrender to him, and was compelled to train his guns upon the Austrian vessel before his demands were complied with. It was however, to prevent bloodshed, agreed that Koszta should be placed in the hands of the French consul subject to the result of diplomatic negotiations between Austria and the United States. The celebrated correspondence between Mr. Marcy, secretary of State, and Chevalier Hulsemaun, the Austrian minister at Washington, which arose out of this affair, and resulted in the release and restoration to liberty of Koszta, attracted a great deal of public attention, and the position assumed by Mr. Marcy met the approval of the country and of Congress, who voted a gold medal to Captain Ingraham for his conduct in the affair. Upou what act of Congress then existing can any one lay his finger in support of the action of our government in this matter? So if the president or the postmaster-general is advised that the mails of the United States, possibly carrying treasure, are liable to be robbed and the mail carriers assaulted and murdered in any particular region of country, who can doubt the authority of the president or of one of the executive departments under him to make an order for the protection of the mail and of the persons and lives of its carriers, by doing exactly what was done in the case of Mr. Justice Field, namely, providing a sufficient guard, whether it be by soldiers of the army or by marshals of the United States, with a posse comitatus properly armed and equipped, to secure the safe performance of the duty of carrying the mail wherever it may be intended to go? The United States is the owner of millions of acres the country must primarily be decided by the attor ney-general of the United States. That such a power should exist somewhere, and that the United States should not be more helpless in relieving itself from frauds, impostures and deceptions, than the private individual, is hardly open to argument." "There must then be an officer or officers of the government to determine when the United States shall sue, to decide for what it shall sue, and to be responsible that such suits shall be brought in appropriate cases. The attorneys of the United States in every judicial district are officers of this character, and they are by statute under the immediate supervison and control of the attorney-general. How then can it be argued that if the United States has been deceived, entrapped or defrauded, into the making, under the forms of law, of an instrument which injuriously affects its rights of property, or other rights, it cannot bring suit to avoid the effect of such instrument, thus fraudu leutly obtained, without a special act of Congress in each case, or without some special authority applica ble to this class of cases?" The same question was raised in the earlier case of United States v. Hughes, 11 How. 552, and decided the same way. of valuable public land, and has been the owner of much more which it has sold. Some of these lands owe a large part of their value to the forests which grow upon them. These forests are liable to depredations by people living in the neighborhood, known as timber thieves, who make a living by cutting and selling such timber, and who are trespassers. But until quite recently, even if there be one now, there was no statute authorizing any preventive measures for the protection of this valuable public property. Has the president no authority to place guards upon the public territory to protect its timber? No authority to seize the timber when cut and found upon the ground? Has he no power to take any measures to protect this vast domain? Fortunately we find this question answered by this court in the case of Wells v. Nickles, 104 U. S. 444. That was a case in which a class of men appointed by local land officers, under instructions from the secretary of the interior, having found a large quantity of this timber cut down from the forests of the United States and lying where it was cut, seized it. The question of the title to this property coming in controversy between Wells and Nickles, it became essential to inquire into the authority of these timber agents of the government thus to seize the timber cut by trespassers on its lands. The court said: "The effort we have made to ascertain and fix the authority of these timber agents by any positive provision of law has been unsuccessful." But the court, notwithstand-personal attack which may probably result in his ing there was no special statute for it, held that the department of the interior, acting under the idea of protecting from depredation timber on the lands of the government, had gradually come to assert the right to seize what is cut and taken away from them wherever it can be traced, and in aid of this the registers and receivers of the land office had, by instructious from the secretary of the interior, been constituted agents of the United States for these purposes, with power to appoint special agents under themselves. And the court upheld the authority of the secretary of the interior to make these rules and regulations for the protection of the public lands. One of the cases in this court in which this question was presented in the most imposing form is that of United States v. San Jacinto Tin Company, 125 U. S. 273. In that case a suit was brought in the name of the United States, by order of the attorney-general, to set aside a patent which had been issued for a large body of valuable land, on the ground that it was obtained from the government by fraud and deceit practiced upon its officers. A preliminary question was raised by counsel for defendant, which was earnestly insisted upon, as to the right of the attorney-general or any other officer of the government to institute such a suit in the absence of any act of Congress authorizing it. It was conceded that there was no express authority given to the attorney-general to institute that particular suit or any suit of that class. The question was one of very great interest, and was very ably argued both in the court below aud in this court. The response of this court to that suggestion conceded that in the acts of Congress establishing the department of justice and defining the duties of the attorney-general there was no such express authority, and it was said that there was also no express authority to him to bring suits against debtors of the government upon bonds, or to begin criminal prosecutions, or to institute criminal proceedings in any of the cases in which the United States was plaintiff, yet he was invested with the general superintendence of all such suits. It was further said: "If the United States, in any particular case, had a just cause for calling upon the judiciary of the country, in any of its courts, for relief by setting aside or annulling any of its contracts, its obligations, or its most solemn instruments, the question of the appeal to the judicial tribunals of We cannot doubt the power of the president to take measures for the protection of a judge of one of the courts of the United States, who while in the discharge of the duties of his office, is threatened with a death, and we think it clear that where this protection is to be afforded through the civil power, the department of justice is the proper one to set in motion the necessary means of protection. The correspondence already recited in this opinion between the marshal of the northern district of California, and the attorneygeneral, and the district attorney of the United States for that district, although prescribing no very specific mode of affording this protection by the attorney-general, is sufficient, we think, to warrant the marshal in taking the steps which he did take, in making the provisions which he did make, for the protection and defense of Mr. Justice Field. But there is positive law investing the marshals and their deputies with powers which not only justify what Marshal Neagle did in this matter, but which imposed it upon him as a duty. In chapter 14 of the Revised States of the United States, which is devoted to the appointment and duties of the district attor neys, marshais and clerks of the courts of the United States, section 788 declares: "The marshals and their deputies shall have, in each State, the same powers, in executing the laws of the United States, as the sheriffs and their deputies in such State may have, by law, in executing the laws thereof." If therefore a sheriff of the State of California was authorized to do in regard to the laws of California what Neagle did, that is, if he was authorized to keep the peace, to protect a judge from assault and murder, then Neagle was authorized to do the same thing in reference to the laws of the United States. Section 4176 of the Political Code of California reads as follows: "The sheriff must: "First. Preserve the peace. "Second. Arrest and take before the nearest magistrate for examination all persons who attempt to commit or have committed a public offense. "Third. Prevent and suppress all affrays, breaches of the peace, riots and insurrections, which may come to his knowledge." And the Penal Code of California declares (§ 197) that homicide is justifiable when committed by any person "when resisting any attempt to murder any person or to commit a felony or to do some great bodily injury upon any person;" or "when committed in defense of habitation, property or person against one who manifestly intends or endeavors by violence or surprise to commit a felony." before the courts, as to releasing by this writ parties held in custody under the laws of the States. But when during the controversy growing out of the nullification laws of South Carolina, officers of the United States were arrested and imprisoned for the performance of their duties in collecting the revenue of the United States in that State, and held by the State authorities, it became necessary for the Congress of the United States to take some action for their relief. Accordingly the act of Congress of March 2, 1833, 4 Stat. 634, among other remedies for such condition of affairs, provided, by its seventh section, that the Federal judges should grant writs of habeas corpus in all cases of a prisoner in jail or confinement, where he should be committed or confined on or by any authority or law, for any act done, or omitted to be done, in pursuance of a law of the United States, or any order, process or decree of any judge or court thereof. That there is a peace of the United States; that a man assaulting a judge of the United States while in the discharge of his duties violates that peace; that in such case the marshal of the United States stands in the same relation to the peace of the United States which the sheriff of the county does to the peace of the State of Calfornia; are questions too clear to need argument to prove them. That it would be the duty of a sheriff, if one had been present at this assault by Terry upon Judge Field, to prevent this breach of the peace, to prevent this assault, to prevent the murder which was contemplated by it, cannot be doubted. And if in performing this duty it became necessary for the protection of Judge Field, or of himself, to kill Terry, in a case where, like this, it was evidently a The next extension of the circumstances on which a question of the choice of who should be killed, the as- writ of habeas corpus might issue by the Federal sailant and violator of the law and disturber of the judges arose out of the celebrated McLeod Case, in peace, or the unoffending man who was in his power, which McLeod, charged with murder, in a State court there can be no question of the authority of the sheriff of New York, had pleaded that he was a British subto have killed Terry. So the marshal of the United ject, and that what he had done was under and by the States, charged with the duty of protecting and guard-authority of his government, and should be a matter ing the judge of the United States court against this of international adjustment, and that he was not subspecial assault upon his person and his life, being pres-ject to be tried by a court of New York under the laws ent at the critical moment, when prompt action was necessary, found it to be his duty, a duty which he had no liberty to refuse to perform, to take the steps which resulted in Terry's death. This duty was imposed on him by the section of the Revised Statutes which we have recited, in connection with the powers conferred by the State of California upon its peace officers, which become, by this statute, in proper cases, transferred as duties to the marshals of the United States. But all these questions being conceded, it is urged against the relief sought by this writ of habeas corpus, that the question of the guilt of the prisoner of the crime of murder is a question to be determined by the laws of California, and to be decided by its courts, and that there exists no power in the government of the United States to take away the prisoner from the custody of the proper authorities of the State of California and carry him before a judge of the court of the United States, and release him without a trial by jury according to the laws of the State of California. That the statute of the United States authorizes and directs such a proceeding and such a judgment in a case where the offense charged against the prisoner consists in an act doue in pursuance of a law of the United States and by virtue of its authority, and where the imprisonment of the party is in violation of the Constitution and laws of the United States, is clear by its express language. of that State. The Federal government acknowledged the force of this reasoning, and undertook to obtain from the government of the State of New York the release of the prisoner, but failed. He was however tried and acquitted, and afterward released by the State of New York. This led to an extension of the powers of the Federal judges under the writ of habeas corpus, by the act of August 29, 1842, 5 Stat. 539, entitled "An act to provide further remedial justice in the courts of the United States." It conferred upon them the power to issue a writ of habeas corpus in all cases where the prisoner claimed that the act for which he was held in custody was done under the sanction of any foreign power, and where the validity and effect of this plea depended upon the law of nations. In advocating the bill, which afterward became a law on this subject, Senator Berrien, who introduced it into the Senate, observed: "The object was to allow a foreigner, prosecuted in one of the States of the Uniou for an offense committed in that State, but which he pleads has been committed under authority of his own sovereignty or the authority of the law of nations, to be brought up on that issue before the only competent judicial power to decide upon matters involved in foreign relations or the law of nations. The plea must show that it has reference to the laws or treaties of the United States or the law of nations, and showing this, the writ of habeas corpus is awarded to try that issue. If it shall appear that the accused has a bar on the plea alleged, it is right and proper that he should not be delayed in prison awaiting the proceed of his plea at bar. If satisfied of the existence in fact and validity in law of the bar, the Federal jurisdiction will have the power of administering prompt relief." No more forcible statement of the principle on which the law of the case now before us stands can be made. The enactments now found in the Revised Statutes of the United States on the subject of the writ of habeas corpus are the result of a long course of legisla-ings of the State jurisdiction on the preliminary issue tion forced upon Congress by the attempt of the States of the Union to exercise the power of imprisonment over officers and other persons asserting rights under the Federal government or foreign governments, which the States denied. The original act of Congress on the subject of the writ of habeas corpus, by its fourteenth section, authorized the judges and the courts of the United States, in the case of prisoners in jail or in custody under or by color of the authority of the United States, or committed for trial before some court of the same, or when necessary to be brought into court to testify, to issue the writ, and the judge or court before whom they were brought was directed to make inquiry into the cause of commitment. 1 Stat. 81. This did not present the question, or at least, it gave rise to no question which came The next extension of the powers of the court under the writ of habeas corpus was the act of February 5, 1867, 14 Stat. 385, and this contains the broad ground of the present Revised Statutes, under which the relief is sought in the case before us, and includes all cases of restraint of liberty in violation of the Constitution or a law or treaty of the United States, and declares that "the said court or judge shall proceed in a summary way to determine the facts of the case, by hearing testimony and the arguments of the parties interested, and if it shall appear that the petitioner is deprived of his or her liberty in contravention of the Constitution or laws of the United States, he or she shall forthwith be discharged and set at liberty." It would seem as if the argument 'might close here. If the duty of the United States to protect its officers from violence, even to death, in discharge of the duties which its laws impose upon them, be established, and Congress has made the writ of habeas corpus one of the means by which this protection is made efficient, and if the facts of this case show that the prisoner was acting both under the authority of law, and the directions of his superior officers of the department of justice, we can see no reason why this writ should not be made to serve its purpose in the present case. We have already cited such decisions of this court as are most important and directly in point, and there is a series of cases decided by the Circuit and District Courts to the same purport. Several of these arose out of proceedings under the Fugitive Slave Law, in which the marshal of the United States, while engaged in apprehending the fugitive slave with a view to returning him to his master in another State, was arrested by the authorities of the State. In many of these cases they made application to the judges of the United States for relief by the writ of habeas corpus, which gave rise to several very interesting decisions on this subject. In Ex parte Jenkins, 2 Wall. Jr. 521, 529, the marshal who had been engaged, while executing a warrant, in arresting a fugitive, in a bloody encounter, was himself arrested under a warrant of a justice of the peace for assault with intent to kill, which makes the case very analogous to the one now under consideration. He presented to the Circuit Court of the United States for the eastern district of Pennsylvania a petition for a writ of habeas corpus, which was heard before Mr. Justice Grier, who held that under the act of 1833, already referred to, the marshal was entitled to his discharge, because what he had done was in pursuance of and by the authority conferred upon him by the act of Congress concerning the rendition of fugitive slaves. He said: "The authority conferred on the judges of the United States by this act of Congress gives them all the power that any other court could exercise under the writ of habeas corpus, or gives them none at all. If under such a writ they may not discharge their officer when imprisoned by any authority for an act done in pursuance of a law of the United States, it would be impossible to discover for what useful purpose the act was passed. It was passed when a certain State of this Union had threatened to nullify acts of Congress, and to treat those as criminals who should attempt to execute them; and it was intended as a remedy against such State legislation." This same matter was up again when the fugitive slave, Thomas, had the marshal arrested in a civil suit for an alleged assault and battery. He was carried before Judge Kane on another writ of habeas corpus and again released. 2 Wall. Jr. 531. A third time the marshal, being indicted, was arrested on a bench warrant issued by the State court, and again brought before the Circuit Court of the United States by a writ of habeas corpus and discharged. Some remarks of Judge Kane on this occasion are very pertinent to the objections raised in the present case. He said (2 Wall. Jr. 543): "It has been urged that my order, if it shall withdraw the relators from the prosecution pending against them (in the State court), will in effect prevent their trial by jury at all, since there is no act of Congress under which they can be indicted for an abuse of process. It will not be an anomaly however if the action of this court shall interfere with the trial of these prisoners by a jury. Our Constitutions secure that mode of trial as a right of the accused; but they nowhere recognize it as a right of the government, either State or Federal, still less of an individual prosecutor. The action of a jury is overruled constantly by the granting of new trials after conviction. It is arrested by the entering of nolle prosequis, while the case is at bar. It is made ineffectual at any time by the discharge on habeas corpus. * * * And there is no harm in this. No one imagines that because a man is accused he must therefore of course be tried. Public prosecutions are not devised for the purpose of indemnifying the wrongs of individuals, still less of retaliating upon them." Many other decisions by the Circuit and District Courts, to the same purport, are to be found, among them the following: Ex parte Robinson, 6 McLean, 355; 4 Am. Law Reg. 617; Roberts v. Jailer of Fayette Co., 2 Abb. U. S. 265; In re Ramsey, 2 Flippen, 451; In re Neill, 8 Blatchf. 156; Ex parte Bridges, 2 Woods, 428; Ex parte Royall, 117 U. S. 241. Similar language was used by Mr. Choate in the Senate of the United States upon the passage of the act of 1842. He said: 'If you have the power to interpose after judgment, you have the power to do so before. If you can reverse a judgment, you can antici pate its rendition. If, within the Constitution, your judicial power extends to these cases or these controversies, whether you take hold of the case or controversy at one stage or another, is totally immaterial. The single question submitted to the National tribunal, the question whether, under the statute adopting the law of nations, the prisoner is entitled to the exemption or immunity:he claims, may as well be extracted from the entire case, and presented and decided in those tribunals before any judgment in the State court, as for it to be revised afterward on a writ of Either way, they pass on no other question. Either way, they do not administer the criminal law of a State. In the one case as much as in the other, and no more, do they interfere with State judicial power." error. The same answer is given in the present case. To the objection made in argument, that the prisoner is discharged by this writ from the power of the State court to try him for the whole offense, the reply is, that if the prisoner is held in the State court to answer for an act which he was authorized to do by the law of the United States, which it was his duty to do as marshal of the United States, and if in doing that act he did no more thau what was necessary and proper for him to do, he cannot be guilty of a crime under the law of the State of California. When these things are shown, it is established that he is innocent of any crime against the laws of the State, or of any other authority whatever. There is no occasion for any further trial in the State court, or in any court. The Circuit Court of the United States was as competent to ascertain these facts as any other tribunal, and it was not at all necessary that a jury should be impanelled to render a verdict on them. It is the exercise of a power common under all systems of criminal jurisprudence. There must always be a preliminary examination by a committing magistrate, or some similar authority, as to whether there is an offense to be submitted to a jury, and if this is submitted in the first instance to a grand jury, that is still not the right of trial by jury which is insisted on in the present argument. We have thus given, in this case, a most attentive consideration to all the questions of law and fact which we have thought to be properly involved in it. We have felt it to be our duty to examine into the facts with a completeness justified by the importance of the case, as well as from the duty imposed upon us by the statute, which we think requires of us to place our selves, as far as possible, in the place of the Circuit Court and to examine the testimony and the arguments in it, and to dispose of the party as law and jus tice require. The result at which we have arrived upon this examination is, that in the protection of the person and the life of Mr. Justice Field while in the discharge of his official duties, Neagle was authorized to resist the attack of Terry upon him; that Neagle was correct in the belief that without prompt action on his part the assault of Terry upon the judge would have ended in the death of the latter; that such being his wellfounded belief, he was justified in taking the life of Terry, as the only means of preventing the death of the man who was intended to be his victim; that in taking the life of Terry, under the circumstances, he was acting under the authority of the law of the United States, and was justified in so doing; and that he is not liable to answer in the courts of California on account of his part in that transaction. We therefore affirm the judgment of the Circuit Court authorizing his discharge from the custody of the sheriff of San Joaquin county. him to amend his complaint accordingly. There was no proof on the part of defendant that any larger sum had been paid. Held, that defendant was not entitled to go to the jury upon the question whether $200 or $100 had been paid. March 18, 1890. Teall v. Consolidated Electric Light Co. Opinion by Earl, J. Affirming 50 Hun, 602. CORPORATIONS-JUDGMENT BY DEFAULT.- Code of Civil Procedure of New York, section 1778, providing that "in an action against a foreign or domestic corporation to recover damages for the non-payment of a promissory note or other evidence of debt, for the absolute payment of money, upon demand or at a par* * * unless the defendant serves, ticular time, with a copy of his answer or demurrer, a copy of an order of a judge directing that the issues presented by the pleadings be tried, the plaintiff may take judgment as in case of default in pleading, at the expiration of twenty days," has no application to an answer served Mr. Justice FIELD did not sit at the hearing of this by a corporation in a suit brought against it as incase, and took no part in its decision. NEW YORK COURT OF APPEALS AB- BOND-BREACH.-The condition of a bond of an insurance agent was that he should faithfully discharge his duties as agent of the company, and deliver and pay over all property and money coming to his hands as such. The agreement for his appointment as such agent provided that he might draw for his services at a specified rate per year, payable monthly, and at the expiration of the year any amount due him should be paid, and any amount overdrawn by him returned. Held, that in the absence of express knowledge of this agreement, the surety on the bond was not liable for excess of advances for salary or commissions retained by the agent under the agreement. The rule is that a surety is entitled to a strict construction of the bond under which it is sought to make him liable, and that it cannot be enlarged by implication to cover any thing which was not in the contemplation of the parties at the time the bond was executed. Bigelow v. Benton, 14 Barb. 123; Barns v. Barrow, 61 N. Y. 39; Schwartz v. Hyman, 107 id. 562. Second Division, March 21, 1890. John Hancock Mutual Life Ins. Co. v. Loewenberg. Opinion by Haight, J. CONTRACT-PLEADING—EVIDENCE.—(1) In an action for services and expenses in defendant's behalf, the auswer first admitted a contract therefor "between and by the parties to this action in the form as stated in the complaint," but denied that plaintiff rendered any services under it. Further on it referred to "the contract in suit," and denied that it was made by or through any authorized officer of defendant, and averred that it was executed on the part of defendant by an officer without authority and by a mutual mistake. Held, that in the second part of the answer there was an implied admission that the contract in suit was made, and that the matters alleged were intended as an affirmative defense, which defendant was bound to prove, and that, in the absence of such proof, there was no error in holding that the contract was fully established. (2) It was undisputed in the evidence that plaintiff eutered upon the performance of his contract, and acted under the direction of defendant's officers, and there was no proof that he neglected or refused to perform any part of the contract. Held, that there was nothing in reference to his performance for submission to the jury. (3) Plaintiff admitted in his complaint that he had been paid $200, but upon the trial testified that it was but $100, and the court allowed dorser. This court has held that "it is to be confined strictly to actions upon instruments which admit on their face an existing debt payable absolutely," and that it had no application to an answer served by an insurance company in a suit upon a life insurance policy, though the policy had become due by the death of the assured. Insurance Co. v. Insurance Co., 88 N. Y. 424. The defendant's contract of indorsement upon which the action is brought is not one "for the absolute payment of money, upon demand or at a particular time." The defendant, by its indorsement, undertook to pay the note to the holder only in case that when due it was duly presented to the maker for payment, and payment demanded and refused by him, and then notice given of this refusal to the indorser. Its agreement to pay was essentially conditional in its character. Moran v. Long Island City, 101 N. Y. 439; Anon., 6 Cow. 41; Tyler v. Insurance Co., 2 Wend. 280. Co. 63. March 4, 1890. Shorer v. Times Print. & Pub. INSURANCE-FIRE-" VACANT AND UNOCCUPIED."A building, insured as a morocco factory, which is vacated by the tenants, and its key given to the owner's renting agent, who visits it occasionally, is unoccupied, within the meaning of a clause in the policy making it void, if the building became vacant or unoccupied. | Halpin v. Insurance Co., 23 N. E. Rep. 482. Second Division, March 21, 1890. Halpin v. Ætna Fire Insurance Co. Opinion by Haight, J. Reversing 45 Hun, 591. ——— FIRE—PERSONAL PROPERTY-FORFEITURE.-A fire insurance policy on mill machinery and apparatus apart from the building in which it was contained, provided that " if a building covered by this policy shall become vacant or unoccupied, or, if a mill or manufactory, shall stand idle, * * * without notice to, and the consent of, the company clearly stated hereon, all liability hereunder will thereupon cease." Held, that the machinery did not constitute a "mill," within the meaning of the provision, and that its standing idle would not create a forfeiture. Herrman v. Insurance Co., 81 N. Y. 184. The property insured was neither a mill nor a manufactory, as those words are commonly understood. While the word "mill" is used to describe "a machine for grinding," it is also defined as "a building, with its machinery, where grinding or some process of manufacturing is carried on." Webst. Dict. A manufactory is "a house or place where any thing is manufactured." Id. Neither term would be understood or used by the mass of mankind to describe simply "machinery and apparatus used in the business of manufacturing leather and morocco," which is the description in the written part of the policy that is claimed to mean a mill or manufactory |