Statement of the Case.

name as our appraiser Wm. Spear, of St. Louis, and upon the naming of your appraiser we will meet you to sign an agreement embodying the provisions of our policies without any conditions. Please take notice that this company reserves the right to take the whole or any part of the property insured at its appraised value; and you are further notified that until such an appraisal is permitted and had, our loss, if any, will not be payable.”

May 15, 1886. Plaintiff's counsel to defendant. "Mr. Hamilton adheres to the position taken by him in the joint correspondence between the insurers and Mr. Hamilton and myself in his behalf. Mr. Hamilton has acted upon the conclusion reached in that correspondence, and I do not understand that your company proposes to change its own attitude as taken in that correspondence."

May 20, 1886. Plaintiff's counsel to defendant. Enclosing a notice in a newspaper of the sale by auction on May 29, 1886, at the plaintiff's warehouse in Covington, of the tobacco insured by the policy in suit.

June 3, 1886. Plaintiff's counsel to defendant. "Mr. Hamilton has disposed of the property claimed to have been damaged in the fire of April 16, by sale at public auction, in pursuance of the notice communicated to your company. If your company really desire to submit to arbitration the question of the amount of loss sustained by Mr. Hamilton, notwithstanding all that has transpired, Mr. Hamilton is quite ready now to submit that question to competent and impartial arbitrators. He simply demands, the arbitrators being chosen, that in the agreement for submission it shall be provided that the company and the assured shall be notified of the time of the hearing of the arbitrators, and that the arbitrators shall hear all competent legal testimony that may be offered by either party, and that a reasonable time shall be prescribed within which an award shall be rendered."

June 7, 1886. Defendant to plaintiff's counsel. "As you have, in spite of our protest, sold and scattered the goods, so that an appraisement within the terms of our policies is now impossible, and have thereby deprived us of our right to take

Opinion of the Court.

the property or any part thereof at its appraised value, we must accept your action as a refusal to accede to our demand for submission of the differences that have arisen between us. By the course pursued, Mr. Hamilton has, in our judgment, waived any rights he may have had under the policies, and this company will stand upon its legal rights in the premises."

The court, after the case had been argued, instructed the jury that it appeared from the evidence that the defendant requested the plaintiff in writing to submit the amount of his loss or damage under the policy to competent and impartial persons, and the plaintiff refused so to do; and instructed the jury to return a verdict for the defendant, which was accordingly rendered. The plaintiff excepted to these instructions, and, after judgment on the verdict, sued out this writ of error:

Mr. Joseph Wilby for plaintiff in error. At the close of Mr. Wilby's argument, the court declined to hear further argument.

Mr. Channing Richards, Mr. Rufus King, Mr. Charles H. Stephens, Mr. S. J. Thompson, Mr. Thomas B. Paxton and Mr. Ledyard Lincoln filed briefs for defendant in error.

MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the court.

The conditions of the policy in suit clearly and unequivocally manifest the intention and agreement of the parties to the contract of insurance that any difference arising between them as to the amount of loss or damage of the property insured shall be submitted, at the request in writing of either party, to the appraisal of competent and impartial persons, to be chosen as therein provided, whose award shall be conclusive as to the amount of such loss or damage only, and shall not determine the question of the liability of the company; that the company shall have the right to take the whole or any part of the property at its appraised value so ascertained; and that until such an appraisal shall have been permitted, and

Opinion of the Court.

such an award obtained, the loss shall not be payable, and no action shall lie against the company. The appraisal, when requested in writing by either party, is distinctly made a condition precedent to the payment of any loss, and to the maintenance of any action.

Such a stipulation, not ousting the jurisdiction of the courts, but leaving the general question of liability to be judicially determined, and simply providing a reasonable method of estimating and ascertaining the amount of the loss, is unquestionably valid, according to the uniform current of authority in England and in this country. Scott v. Avery, 5 II. L. Cas. 811; Viney v. Bignold, 20 Q. B. D. 172; Delaware & Hudson Canal v. Pennsylvania Coal Co., 50 N. Y. 250; Reed v. Washington Ins. Co., 138 Mass. 572, 576; Wolff v. Liverpool & London & Globe Ins. Co., 21 Vroom, 453; Iall v. Norwalk Ins. Co., 57 Conn. 105, 114. The case comes within. the general rule long ago laid down by this court: "Where the parties, in their contract, fix on a certain mode by which the amount to be paid shall be ascertained, as in the present case, the party that seeks an enforcement of the agreement must show that he has done everything on his part which could be done to carry it into effect. He cannot compel the payment of the amount claimed, unless he shall procure the kind of evidence required by the contract, or show that by time or accident he is unable to do so." United States v. Robeson, 9 Pet. 319, 327. See also Martinsburg & Potomac Railroad v. March, 114 U. S. 549.

Upon the evidence in this case, the question whether the defendant had duly requested, and the plaintiff had unreasonably refused, to submit to such an appraisal and award as the policy called for, did not depend in any degree, (as in Uhrig v. Williamsburg Ins. Co., 101 N. Y. 362, cited for the plaintiff,) on oral testimony or extrinsic facts, but wholly upon the construction of the correspondence in writing between the parties, presenting a pure question of law, to be decided by the court. Turner v. Yates, 16 How. 14, 23; Bliven v. New England Screw Co., 23 How. 420, 433; Smith v. Faulkner, 12 Gray,

Opinion of the Court.

That correspondence clearly shows that the defendant ex plicitly and repeatedly in writing requested that the amount of the loss or damage should be submitted to appraisers in accordance with the terms of the policy; and that the plaintiff as often peremptorily refused to do this, unless the defendant would consent, in advance, to define the legal powers and duties of the appraisers, (which the defendant was under no obligation to do,) and that the plaintiff throughout, against the constant protest of the defendant, asserted, and at last exercised, a right to sell the property before the completion of an award according to the policy, thereby depriving the defendant of the right, reserved to it by the policy, of taking the property at its appraised value, when ascertained in accordance with the conditions of the policy.

The court therefore rightly instructed the jury that the defendant had requested in writing, and the plaintiff had declined, the appraisal provided for in the policy, and that the plaintiff, therefore, could not maintain this action.

If the plaintiff had joined in the appointment of appraisers, and they had acted unlawfully, or had not acted at all, a different question would have been presented.

Judgment affirmed.

A sale by a postmaster of postage stamps on credit is a violation of the act of June 17, 1878, c. 259, § 1, forbidding him to "sell or dispose of them except for cash."

Sending a letter to a postmaster, asking him whether, if the writer of the letter will send him five thousand circulars in addressed envelopes, he will put postage stamps on them and send them out at the rate of one hundred daily, and promising him, if he will do so, to pay to him the price of the stamps, is a tender of a contract for the payment of money to the postmaster, with intent to induce him to sell postage stamps on credit and in violation of his duty, and is punishable under § 5451 of the Revised Statutes.

The offence of tendering a contract for the payment of money in a letter mailed in one district and addressed to a public officer in another, to induce him to violate his official duty, may be tried in the district in which the letter is received by the officer.

CHARLES PALLISER, being detained by the United States marshal for the Southern District of New York, under a warrant from a commissioner of the Circuit Court of the United States for that district, obtained from that court a writ of habeas corpus, as well as a writ of certiorari, to the marshal and commissioner, both returnable at a stated term of the court, in obedience to which the commissioner returned a record of proceedings had before him under § 1014 of the Revised Statutes, which enacts that "for any crime or offence against the United States the offender may," by any commissioner of the Circuit Court, "be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offence;" and that where any offender" is committed in any district other than that where the offence is to be tried," a warrant may be issued by the District Judge and executed by the marshal of that district, "for his removal to the district where the trial is to be had." The proceedings stated in the return were as follows: First. The complaint, of which the following is a copy:

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