U $14     .t FEDERAL :n.Ei=•oR’1*1¤:1z.
each lofi its oliicers would be liable to be punished -»by hne and i1n—
prisonment.
Let a decree be entered for the plaintiff, as prayed in the bill.
See Memphis at Jo. R. R. Co. v. Nolan, 14 Fan. Rnr. 532, and note, 534.
Eeennsrou and another v. Csnrmmisn Moron. Lira Ass’N or
Boanrnoron, lows.'
(Circuit Court, E! D. Missouri. September 21, 1883.
1. 1NSURANCE—MUTUAL Assoowrron Po1.1c·r—How ENFORCED—PRACTICE.
Where a policy of insurance issued by a mutual association does not tix upon
V the association an absolute liability to pay any particular sum, but only a lia-
r bility to pay the proceeds of a particular assessment to be levied in a particular
. way. not to exceed a certain sum, and further provides that the association
shall only be liable in a proceeding to compel it to make the assessment, an ac-
tion at· law to recover the maximum amount named in the policy cannot be
- maintained;
· 2. Sami:. _
y The only remedy in case of the assurcd’s death is by a proceeding in chancery
to compel a specific performance. °
V At Law. ‘ “ »
— Geo. `D.. Reynolds, for plaintiiis. V »
Davis ¢r Davis and Newman ré Blake, for defendant.
Mc.C1u.nv, J 4, (orally.) This case is before the court on demurrer
to the petition, It is a suit on a policy of insurance issued to him
by the defendant, which is a mutual insurance company. The policy
provides that in case of the death of theassured the company will
proceed to make certain assessments upon the policy-holders for the
purpose of paying the loss. The amount of the loss to be paid is
not absolutely fixed by the provisions of the policy; it provides for a
certain mode of assessment upon the policy-holders incase of the
death of aimember, and for the payment of the proceeds of said
assessment, not exceeding $5,000 in this case, to the beneficiaries of
the insured. The policy also contains, among other conditions, the-
following: l
··The only action maintainable upon this policy shall be to compel the as·
sociation to levy the assessments herein agreed upon, and if a levy is ordered
shy the court, the association shall be liable under this policy only for the sum
collected under an assessment so made."
. The question is whether that is a valid provision of this contract
of· insurance-, because, this being an action at law, it cannot be main-
tained unlesslthat provision ofthe policy is set aside. This is an
action to recover $5,000, which is claimed as due upon the policy,
¤Reported by Bcnj. F. Rex, Esq., of the St. Louis bar. -