Opinion of the Court. As 2. The plaintiffs in error contend that as the draft was not accepted by the drawees when presented for acceptance, they were under no obligation to present it for payment at maturity. This would be so in an ordinary case of non-acceptance of a bill, provided it was followed up by protest and notice. But this particular draft, or bill, had a condition in it, that the policy should be void if it were not paid at maturity, and the plaintiffs in error claimed the benefit of this condition. forfeitures upon condition broken are to be strictly construed, the condition in this case could not be regarded as broken by the non-acceptance of the bill before maturity; but could only be broken by non-payment at maturity. The drawees might not have felt authorized to accept the hill when it was presented; and yet, when it came to maturity, in consequence of further advice from the drawer, or other reasons, they might be ready and willing to pay it. The holders of the policy were entitled to this opportunity of obviating a forfeiture. We are of opinion, therefore, that the court below was right in holding that a presentment for payment was necessary notwithstanding the non-acceptance. 3. The plaintiffs in error further contend that the charge was erroneous in holding that no formal proof of the death of S. H. Pendleton was necessary in this case. On this point the charge was as follows: "As to the proof of loss not being filed, it is conceded notice of the death was given. If, when that was done, the agents of the company repudiated all liability, and informed the parties that the policy had lapsed, then no proof of loss was required by them, and the failure to file it cannot alter the case." We think that there was no error in this instruction. The weight of authority is in favor of the rule, that a distinct denial of liability and refusal to pay, on the ground that there is no contract, or that there is no liability, is a waiver of the condition requiring proof of the loss or death. It is equivalent to a declaration that they will not pay, though the proof be furnished. Tayloe v. Merchants' Fire Insurance Co., 9 How. 390, 403; Allegre v. Maryland Insurance Co., 6 H. & J. 408; Norwich & N. Y. Transportation Co. v. Western Mass. Insurance Co., 34 Conn. 561; Thwing v. Great Western Opinion of the Court. Insurance Co., 111 Mass. 92, 110; Brink v. Hanover Fire Insurance Co., 80 N. Y. 108; May on Insurance, §§ 468, 469. The preliminary proof of loss or death required by a policy is intended for the security of the insurers in paying the amount insured. If they refuse to pay at all, and base their refusal upon some distinct ground without reference to the want of defect of the preliminary proof, the occasion for it ceases, and it will be deemed to be waived. And this can work no prejudice to the insurers, for in an action on the policy the plaintiff would be obliged to prove the death of the person whose life was insured, whether the preliminary proofs were exhibited or not. The judgment of the Circuit Court is reversed, and the cause remanded with directions to award a new trial. POWER & Another v. BAKER & Another. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA. Submitted November 24, 1884.-Decided December 15, 1884. Motions to vacate a supersedeas, and other motions of that kind, made before the record is printed, must be accompanied by a statement of the facts on which they rest, agreed to by the parties, or supported by printed copies of so much of the record as will enable the court to act understandingly, without reference to the transcript on file. This was a motion to vacate a supersedeas. Mr. J. H. Davidson for the motion. Mr. Edward G. Rogers opposing. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. Neither the record in this case, nor the part thereof on which this motion depends, has been printed, and the appellees have neglected to state in their motion papers the facts as presented by the transcript on which they rely. An affidavit has been filed to the effect that the appellees were not served with a Counsel for Parties. citation, nor with a notice of an application for the allowance of an appeal, until after the expiration of sixty days, Sundays exclusive, from the time of the rendition of the decree appealed from. In the same affidavit it is stated, however, that the proctor of the appellees was informed that an appeal bond had been presented to the Circuit Court for approval within the sixty days. It is also stated that on the 10th of January, 1884, an order allowing an appeal was entered nunc pro tunc as of the date of the presentation of the bond. An affidavit filed by the appellants shows, that, on the day the bond was presented to the Circuit Court, it was approved, allowed and filed in the cause. As upon this motion it rests upon the appellees to show that the bond was not accepted in time, and that has not been done, the motion to vacate the supersedeas is denied. In this connection we take occasion to say, that motions of this kind, made before the record is printed, must be accompanied by a statement of the facts on which they rest, agreed to by the parties, or supported by printed copies of so much of the record as will enable us to act understandingly, without reference to the transcript on file. Motion denied. SCHARFF & Another v. LEVY & Another. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI. Submitted November 24, 1884.-Decided December 15, 1884. A case cannot be removed from a State court under the act of March 3, 1875, 18 Stat. 470, after hearing on a demurrer to a complaint because it did not state facts sufficient to constitute a cause of action. Alley v. Nott, 111 U. S. 472, affirmed. The facts are stated in the opinion of the court. Mr. John W. Noble and John C. Orrick for plaintiff in error. Mr. John P. Ellis and Mr. Jeff. Chandler for defendant in error. Opinion of the Court. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. The order remanding this cause to the State court from which it was removed is affirmed on the authority of Alley v. Nott, 111 U. S. 472, where it was decided that a case could not be removed from a State court under the act of March 3, 1875, ch. 137, 18 Stat. 470, after a hearing on a demurrer to a complaint because it did not state facts sufficient to constitute a cause of action. To that decision we adhere. The Code of Civil Procedure of New York, from which State that cause came, provided that the court might, in its discretion, allow the party in fault to plead over or amend after the decision against him on a demurrer. In Missouri, from which State this case comes, § 3518 of the Revised Statutes, 1879, provides that a plaintiff may amend, of course, with or without costs, as the court may order. But in Missouri, as in New York, a general demurrer to a petition or complaint raises an issue of law, which when tried, will finally dispose of the case unless the plaintiff amends or the defendant answers, as may be required. "If final judgment is entered on the demurrer, it will be a final determination of the rights of the parties, which can be pleaded in bar of another suit for the same cause of action." An issue of law involving the merits of the action is as much tried on the hearing of a demurrer in Missouri as it is in New York. The fact that in Missouri an amendment may be made or a plea filed as a matter of course does not affect the principle on which the right of removal depends. The demurrer in the present case is not set out in full in the record, but it is conceded, in the brief of counsel for the plaintiffs in error, that it was "on the ground that the facts stated did not constitute a cause of action," and that would have been a fair inference from the entry, "demurrer filed," if the admission had not been made. Affirmed. Syllabus. MATTOON v. MCGREW. APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Argued November 23, 1884.-Decided December 15, 1884. Hitz v. National Metropolitan Bank, 111 U. S. 722, was decided after elaborate argument and careful consideration, and is adhered to by the court. Mr. S. S. Henkle for appellant. Mr. Leigh Robinson and Mr. James Lowndes for appellee. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. A motion has been made to dismiss this appeal because the value of the matter in dispute does not exceed $2,500. From the facts appearing in the record, supplemented as they have been by affidavits as to value, we are satisfied this motion should be overruled, and it is so ordered. It is conceded in the brief filed for the appellee "that the essential facts in this case are substantially like those in Hitz v. The National Metropolitan Bank, 111 U. S. 722." That case was decided on full consideration after an elaborate argument on both sides, and we are satisfied with the conclusion then reached. We therefore reverse this decree, on that authority, and remand the cause, with instructions to enter a decree in accordance with the prayer of the bill, enjoining the appellee McGrew from selling, or attempting to sell, the marital right or interest of the husband of the appellant in the property described in the bill for the payment of his judgment against the husband. Reversed HALFERTY v. WILMERING. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF IOWA. Argued December 2, 1884.-Decided January 5, 1883. In Iowa, a general denial by a defendant, in an action on a contract, of each and every allegation in a petition which sets forth the contract and avers |