Opinion of the Court.

which the contract of insurance was executed, that assessments would regularly be made in February, April, June, August, October and December, or at such other periods as the direc tors might determine. But if the association was bound to make assessments in those months, whether made necessary or not by its financial condition, still the insured could not know, in advance, the amount of an assessment; for such amount depended upon the state of the "death fund," the determination of the executive committee as to the sum required "to meet the existing claims by death," and the apportionment of that sum among members according to their respective ages and the rates specified in the certificates of membership. Now, it is contended, that the failure of the insured, in this case, to inform the defendant in writing that he had not received notice of the assessment of June 2, 1884, was alone sufficient to forfeit his membership. This suggestion necessarily proceeds upon the ground that the association had no discretion but to make an assessment on that day, and that the insured must be held to have known that one was made, although he could not have knowledge of its amount. This construction of the defendant's constitution and by-laws may well be doubted. We incline to the opinion that the association was not required to make an assessment except when the condition of the "death fund" made it necessary to raise money to meet existing claims by death. The contract-adopting almost literally the words of the constitution — required an assessment "whenever the death fund of the association is insufficient to meet the existing claims by death,” and “for such sums as the executive committee may deem sufficient to cover said claims." This would indicate that an assessment should not or would not be made unless rendered necessary by the condition of the death fund. Be this as it may, the duty imposed upon the insured to inform the company of his failure to receive notice of an assessment was neither expressly, nor by necessary implication, made a condition of the contract, the non-performance of which would cause a forfeiture of membership and previous payments. If the defendant did not make an assessment, information in writing from the in

an idle ceremony.

Opinion of the Court.

sured that he had not received notice of one would have been If it made one, and did not give the insured notice of it at least in the mode prescribed his failure to inform the association that he had not received notice of such assessment was immaterial and could not excuse its failure to give the required notice.

Did the defendant give notice to the insured of the assessment of June 2, 1884? That is the controlling question in the case. The court instructed the jury that it was not incumbent upon the defendant to prove anything more than that it mailed a notice of the assessment to the insured according to his address and its usual course of business, and that fact being proved it was entitled to a verdict whether the insured received the notice or not. Whether the clause in the certificate of insurance relating to notice means anything more than that proof of mailing a notice according to the defendant's usual course of business, directed to the insured at his post-office address as appearing upon its books, made a prima facie case of compliance upon its part with the terms of the contract, leaving the insured to prove, in order to prevent a forfeiture of his membership, that the notice was not in fact received by or for him, we need not determine. The defendant obtained the most favorable construction of the contract to which it was entitled under any view, and the only question open to it upon this writ of error is whether the court erred in holding that the burden of proof was upon it to show that a notice properly directed was mailed according to its usual course of business. We are of opinion that upon this point no error was committed. As the insured was not bound to pay an assessment of which notice was not given, at least in the mode designated, and as the duty to give such notice was, necessarily, upon the defendant, it could not claim a forfeiture except upon showing that that duty was performed. But the contention is, that the proof of such mailing was so overwhelming that the court erred in refusing to instruct the jury to find a verdict in its favor. We do not concur in this view. Without referring to the evidence in detail, we content ourselves with saying that upon the issue as to whether notice was, in fact,

Opinion of the Court.

mailed, as claimed by the defendant, there was evidence both ways. The case, upon this point, was peculiarly one for the jury.

In this connection, it may be observed that while the defendant claims a forfeiture of the contract by reason of the failure of the insured to pay the June assessment within thirty days after notice thereof was mailed to him-which its officers testified must, according to the usual course of business, have been on the evening of May 31, 1884-in its answer, verified by the oath of its president, it stated that mortuary assessments were made upon the insured on the first days of August, October and December, 1884, and that it mailed to him notices of each of those assessments; that he failed to pay any one of them; and that by reason of each one of such failures the certificate became void. According to the theory of the defence as thus disclosed by the answer, it may well be inquired why the defendant treated the insured as a member of the association after the time when, according to its present contention, he had forfeited his right of membership? And why did it refuse, in September, to accept payment of all previous unpaid assessments, and yet, in October, and again in December, make further assessments upon him as a member? Notwithstanding the above allegations in the answer, it was not claimed at the trial that notices of assessments subsequent to that of June were mailed to the insured. The case went to the jury upon the issue as to whether notice of the June assessment was mailed to the insured; the court ruling that if it was so mailed, the defendant was entitled to a verdict. This could have occurred only upon the ground that the defendant was mistaken when it alleged in its answer that notices of assessments made in August, October and December were mailed to the insured. We suppose the fact to be that no assessments were made in those months upon Hamlin; and the defendant would have appeared to better advantage if it had modified of record those parts of its verified answer averring not only that assessments were made in those months upon Hamlin, but that notices thereof were mailed to him.. The whole question of mailing was left in such condition by

VOL. CXXXIX-20

Syllabus.

the proof that it would have been error to take it from the jury.

Some stress is laid upon the fact that an application was made in December, 1884, in the name of the insured, for reinstatement as a member of the association. When information of the June assessment was received by Mrs. Hamlin, the beneficiary in the contract of insurance, in September, 1884, she promptly offered, through a friend, to pay all previous unpaid assessments upon the insured. The defendant refusing to accept such payment, and denying that the insured was any longer one of its members, the attempt was made to have him reinstated by the act of the association. That attemptevidently made to avoid litigation cannot be regarded as a waiver of the rights the insured had as a member; for those rights were not forfeited by his failure to pay the assessment of June 2, 1884, the only one in question; notice of which, as the jury found, was not given as required by the contract.

Numerous other points have been made on behalf of the defendant. But they are the merest technicalities, in nowise involving the substantial rights of the parties. We do not feel obliged to extend this opinion by a discussion of questions of that character.

We find no error of law in the record, and the judgment is Affirmed.

UNITED STATES ex rel. BOYNTON v. BLAINE.

ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

No. 1149. Argued March 5, 6, 1891.

Decided March 23, 1891.

The writ of mandamus cannot issue in a case where its effect is to direct or control the head of an executive department in the discharge of an executive duty, involving the exercise of judgment or discretion.

When a mere ministerial duty is imposed upon the executive officers of the government, that is, a service which they are bound to perform without further question, then, if they refuse, the mandamus may be issued to compel them.

Statement of the Case.

A writ of mandamus confers no new authority, and the party to be coerced must have the power to perform the act.

The act of June 18, 1878, 20 Stat. 124, c. 262, subjects specifically the payment of the Weil and La Abra awards under the Mexican Claims Commission of July 4, 1868, 15 Stat. 679, to the control of the President; and the subject being thus confided to his judgment and discretion, mandamus will not lie to compel their payment.

Frelinghuysen v. Key, 110 U. S. 63, affirmed and applied.

SYLVANUS C. BOYNTON filed his petition in the Supreme Court of the District of Columbia, November 23, 1889, against the Secretary of State, for a mandamus to compel him to pay the petitioner, as assignee of one Weil, certain moneys in respect of a claim allowed under the convention between the United States and Mexico for the adjudication of claims of citizens of either country upon the government of the other, of July 4, 1868, (15 Stat. 679.) The petition set forth from Art. II of the treaty this clause: "The President of the United States of America and the President of the Mexican Republic hereby solemnly and sincerely engage to consider the decision of the commissioners conjointly or of the umpire, as the case may be, as absolutely final and conclusive upon each claim decided upon by them or him respectively, and to give full effect to such decisions without any objection, evasion, or delay whatsoever;" and also Art. 'V, as follows: "The high contracting parties agree to consider the result of the proceedings of this commission as a full, perfect and final settlement of every claim upon either government arising out of any transaction of a date prior to the exchange of the ratifications of the present convention; and further engage that every such claim, whether or not the same may have been presented to the notice of, made, preferred or laid before the said commission, shall, from and after the conclusion of the proceedings of the said commission, be considered and treated as finally settled, barred and thenceforth inadmissible."

The petition averred that it was stipulated that if the aggregate of claims allowed on one side exceeded the aggregate of those allowed on the other, the balance should be paid by the government against whom it so resulted in equal annual instalments, and that "the government so receiving such bal