back to the nations to which they belong and from whence they came, and that the secretary of the treasury shall prescribe regulations for the return of such persons to the countries whence they came, and that the expense of such return shall be borne by the owners of the vessels in which such persons came. On October 19, 1888, said act was amended (1 Supp. Rev. St. [2d Ed.] p. 633). The amendment authorizes the secretary of the treasury, in case he shall be satisfied an immigrant has been allowed to land contrary to the prohibition of the statute, to cause such immigrant, within the period of one year after landing or entry, to be taken into custody, and returned to the country from whence he came, at the expense of the owner of the importing vessel. On March 3, 1891, the prior acts were further amended. 26 Stat. 1084. By this amendment the office of superintendent of immigration was created, and, among other provisions, the following sections were enacted. A portion of section 8 is as follows:

"The inspection officers and their assistants shall have power to administer oaths, and to take and consider testimony touching the right of any such aliens to enter the United States, all of which shall be entered of record. During such inspection after temporary removal the superintendent shall cause such aliens to be properly housed, fed, and cared for, and also, in his discretion, such as are delayed in proceeding to their destination after inspection. All decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the superintendent of immigration, whose action shall be subject to review by the secretary of the treasury."

Section 10 provides that:

"All aliens who may unlawfully come to the United States shall, if practicable, be immediately sent back on the vessel by which they were brought in." Section 11:

"That any alien who shall come into the United States in violation of law may be returned as by law provided, at any time within one year thereafter, at the expense of the person or persons, vessel, transportation company, or corporation bringing such alien into the United States, and if that cannot be done, then at the expense of the United States; and any alien who becomes a public charge within one year after his arrival in the United States from causes existing prior to his landing therein shall be deemed to have come in violation of law and shall be returned as aforesaid."

Section 13:

"That the circuit and district courts of the United States are hereby invested with full and concurrent jurisdiction of all causes, civil and criminal, arising under any of the provisions of this act; and this act shall go into effect on the first day of April, eighteen hundred and ninety-one."

No question can be made of the power of the United States to deal summarily with aliens who have succeeded in landing in the United States in violation of law, as well as with those who are applying for admission. Said the court in Fong Yue Ting v. U. S., 149 U. S. 713, 13 Sup. Ct. 1022, 37 L. Ed. 905: "The power to exclude aliens, and the power to expel them, rest upon one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power." The question before the court, therefore, is one purely of the construction of the provisions of the acts above mentioned. What is meant

by the provision of section 11 of the act of March 3, 1891, that any alien who shall come into the United States in violation of law may be returned "as by law provided"? In enacting that provision congress obviously had in mind its previous statutory regulation for returning to the country whence they came aliens who, coming under a contract to perform labor, had been unlawfully permitted to land in the United States. Turning to the law of October 19, 1888, above referred to, it will be seen that by its provisions the secretary of the treasury is authorized, in case he shall be satisfied that an immigrant has been allowed to land contrary to the prohibition of that law, to cause such immigrant, within the period of one year after landing or entering, to be taken into custody, and returned to the country whence he came, at the expense of the owner of the importing vessel. We find no other statutory provision to which the language of section 11, "as by law provided," is referable. By using those words, congress clearly declared that there was to be found in its statutory enactments a manner provided by law to meet the requirements of the statute. The act of March 3, 1891, is declared to be amendatory of the "various acts relative to immigration and the importation of aliens under contract or agreement to perform labor." Among such acts was the act of October 19, 1888. The amendment adds to the class of persons who may be deported by the former act, and includes therein idiots, insane persons, paupers, or persons likely to become a public charge, and other classes of persons, but it makes no change in the method which was prescribed for dealing with such cases of unlawful entry. The procedure remains as before-First, the secretary of the treasury shall be satisfied that an immigrant has landed in violation of the prohibition; and, second, he shall cause him, within one year after landing, to be taken into custody, and returned to the country whence he came. This is the "manner provided by law." Nothing more is required in the way of procedure. There must be imported, therefore, into the language of section 11 the previous enactment of October 19, 1888. When so read, it is clear that section 11 confers upon the secretary of the treasury the authority to act by and through the immigration officers who are under his control, and to arrest and return to the country whence he came, within one year after landing, any alien who has or who is deemed by law to have landed in the United States in violation of that statute. It is urged against this construction that section 8 of the law of 1891 makes final only the adverse decisions of the inspection officers or their assistants touching "the right of an alien to land." To this it may be said that the omission of the statute to make final the decision of the secretary of the treasury, directing that one who has landed in the United States in violation of the law be returned to the country whence he came, does not render such decision and order invalid. If the order is not by statute made final, it is nevertheless valid and conclusive until overruled by paramount authority. What was in fact the effect of the decision of the secretary of the treasury in this case, whether final or not, we are not called upon to determine. Conceding that it was not final, and that the district court

had jurisdiction, upon writ of habeas corpus, to investigate the facts, and to render a judgment thereupon, it is nevertheless true that no such judicial proceeding was had. The ruling of the district court in discharging the petitioner was based upon the assumption that the action of the secretary of the treasury was without authority of law and void. To this view, for the reasons above stated, we cannot assent. That the immigration inspector in deporting the petitioner was acting under instructions from the sec retary of the treasury, and under the provisions of the statute and the printed rules which were issued from the treasury department, is clearly shown by the return to the writ, and by the warrant for deportation, which bears the signature of the secretary of the treasury, and is attested by his official seal.

It is contended that warrant for the ruling of the district court is found in section 13 of the act of 1891, which confers concurrent jurisdiction upon the circuit and district courts of all causes, civil and criminal, arising under the act. In the case of Nishimura Ekiu v. U. S., 142 U. S. 651, 12 Sup. Ct. 336, 35 L. Ed. 1146, the supreme court, in considering that provision of the statute, said that section 13 "evidently refers to causes of judicial cognizance, already provided for, whether civil actions in the nature of debt for penalties, under sections 3 and 4, or indictments for misdemeanors, under sections 6, 8, and 10. Its intention was to vest concurrent jurisdiction of such causes in the circuit and district courts, and it is impossible to construe it as giving the courts jurisdiction to determine matters which the act has expressly committed to the final determination of executive officers." While it may not be claimed for this utterance of the court that it was intended thereby to itemize all the classes of jurisdiction that might be exercised by the circuit and district courts under section 13, it may be adverted to as showing what, in the opinion of the court, was the obvious line of distinction between the powers conferred upon the courts and those conferred upon executive officers. Whether or not the district court, under the provisions of that section, would have had jurisdiction of a proceeding to deport the petitioner, is a question which is not involved in the present case. What we hold is that the action of the secretary of the treasury was, upon the facts stated in the return to the writ, authorized by law, and that the judgment of the district court, discharging the petitioner from custody upon the ground that he was unlawfully restrained of his liberty, was error, for which the judgment must be reversed, and the cause remanded for further proceedings not inconsistent with the foregoing views.

(100 Fed. 408.)

MUTUAL LIFE INS. CO. OF NEW YORK v. DINGLEY.
(Circuit Court of Appeals, Ninth Circuit. February 5, 1900.)

No. 520.

1. PLEADING-ISSUES-GENERAL DENIAL.

Where a general denial of an allegation of performance of all the conditions of a contract by plaintiff is coupled with a specification of the grounds on which such denial is based, and such grounds are held insufficient on demurrer, the denial itself does not put the allegation in issue. 2. INSURANCE-ACTION ON POLICY-ISSUES AND VARIANCE.

Plaintiff, in an action in a federal court, declared upon policies of life insurance issued by defendant to his intestate, and alleged performance by himself and the decedent of all conditions of the contract on their part. Defendant denied such allegation, and alleged that the insured had failed to pay premiums as required by the policies, which, by their terms, terminated the contracts. On demurrer this defense was held insufficient, under the state statutes by which the contracts were governed, which required the giving of a prescribed notice before a policy could be forfeited for nonpayment of premiums, and, on defendant's failure to amend, judgment was rendered for plaintiff. Held, that such judgment was not based upon the statute, and therefore upon a cause of action not pleaded, but that such statute, of which the court was bound to take judicial notice, was applicable only to the defense pleaded, and, that defense being rendered by the statute insufficient, the judgment was based upon the untraversed allegations of the complaint.

3. SAME-CONTRACT-BY WHAT LAW GOVERNED.

Where an application for life insurance, which was made a part of the contract of insurance, recited that it was made "subject to the charter of the company and the laws of the state of New York," where the company was domiciled, the policy was there issued, and both policy and premiums were made payable there, the contract is governed by the laws of New York, although the application was signed and the policy delivered in another state, where the insured resided.

4. SAME-FORFEITURE FOR NONPAYMENT OF PREMIUMS-NEW YORK STATUTE. The provision of the New York insurance statutes, requiring a prescribed notice to be given before a policy can be declared forfeited for nonpayment of premiums, is mandatory, and cannot be waived by the parties; and a parol statement or agreement by a policy holder, after he has made default, recognizing that his policy has thereby lapsed, cannot affect the operation of such statute, where it was without consideration, and no grounds of estoppel existed.

5. SAME-CONSTRUCTION OF STATUTE.

Such statute is not limited in its application to policies issued to citizens of New York, but extends, by its terms, to all policies issued by companies doing business in the state.

In Error to the Circuit Court of the United States for the Northern Division of the District of Washington.

This writ of error is brought to review the decision of the circuit court in rendering judgment for the defendant in error upon the pleadings filed in an action at law to recover upon four several policies of life insurance. The complaint alleged: That the Mutual Life Insurance Company of New York, the defendant in the action, is a corporation organized under the laws of the state of New York, and has its home office in the city of New York. That on May 24, 1892, it issued to plaintiff's intestate three several policies of insurance, the first and second of which were for $10,000 each, and the third for $5,000, upon each of which policies there was paid the premium for the first 15 months, and that on November 7, 1892, it issued a fourth policy for $50,000,

upon which one year's premium was paid. The form of the policy in each case is the same, and is set forth in the complaint in full. It is recited therein that it is issued in consideration of the application therefor, which is made a part of the contract. It promises to pay at the home office of the company, in the city of New York, the amount of insurance covered thereby, upon acceptance of satisfactory proofs at the home office of the death of the insured. It provides that the annual premium shall be paid to the company at its home office, in the city of New York, on August 24th in every year for 20 years. It contains the recital that the company has caused the policy to be executed at its office, in the city of New York, state of New York. Concerning the payment of premiums, there are also the following provisions: "Each premium is payable at the office of the company, in the city of New York. Notice that each payment is due at the date named in the policy is given and accepted by the delivery and acceptance of the policy, and any further notice required by any statute is expressly waived." The complaint further alleges the death of the insured at Seattle on November 12, 1896, the appointment of the plaintiff as the administrator of his estate, and that on May 28, 1897, the defendant in error furnished due proofs of the death of the insured, which were accepted by the company as satisfactory, and it contains the allegation that the insured and the administrator "each duly performed all conditions of said policy on their part." To this complaint the insurance company made answer, admitting the allegations of the complaint as to its creation under the laws of New York, the location of its principal place of business in that state, the execution of the policies and the payment of premiums, but alleged that the policies were delivered in the city of Seattle, and not in the city of New York. It admitted the making and acceptance of satisfactory proofs of death of the insured, but denied the performance of the conditions of the policy on the part of the defendant in error or his intestate. It set up an affirmative defense, alleging: That its chief office for the transaction of business in the state of Washington was in the city of Seattle. That the applications were signed at Seattle, and were a part of the policy and of the contract of insurance. That the application recited the stipulation that the policy should not take effect until the first premium should have been paid and the policy delivered. That the agent of plaintiff in error in Seattle transmitted said application to the general agent in San Francisco, by whom it was transmitted to the insurance company in New York. That the insurance company executed its policies, and transmitted the same to its general agent in San Francisco, who transmitted the same to its agent in Seattle, to be there delivered upon the payment of the first premium, and that there the insured paid the first premium and received the policies. That it was provided in said policies that "each premium is due and payable at the home office of the company, in the city of New York, but will be accepted elsewhere, when duly paid in exchange for the company's receipt, signed by the president or secretary. Notice that each and every such payment is due at the date named in the policy is given and accepted by the delivery and acceptance of this policy. Any further notice required by any statute is thereby expressly waived." That from the date of said policies to the time of his death the insured resided in Seattle, and transacted business there, and was a man of general information and experience in business affairs. That he knew and was fully informed of the date when the second annual premiums on said policies became due, in the year 1893, and the amounts thereof, and that with full knowledge of the premises he did elect to make and did make no further payment thereon, and elected to allow and allowed the said policies to lapse and become void for want of payment of premiums, because he did not further desire to continue said insurance, and that from that time he knew that the insurance company had written off said policy from its books, and treated the same as lapsed. That until the time of his death the insured elected to make no further payment of premium or premiums. That by reason of said facts his administrator is estopped to assert that the policies are existing contracts. By stipulation, the several applications were made part of the pleadings. The defendant in error filed a demurrer to each of the affirmative defenses, for want of facts sufficient to constitute a defense, and filed a general demurrer to the answer as a whole. The demurrers were sustained. The plaintiff in error declining to amend its answer or