omrmn sruras- v. nsrzc. 15
l would not be willing to say that no action at law can be founded
upon a, policy of this character. Facts and circumstances might
arise under which the beneficiaries could bring a· suit at law upon
the policy, but I am unable to see any sufficient reason for holding
that such a contract as this is absolutely null and void. It is not a
contract which confers a right and denies a remedy, (such a contract
might well be held to be contrary to public policy,) but it is a con-
tract which confers certain rights upon the policy-holder, and in
which the parties agree that the remedy shall be by a proceeding to
compel the levy of the assessment, and not by an action at law to
recover damages. If the policy provided in clear terms that the
beneficiaries shall, in case of death, receive a particular sum, to be
recovered by assessment, or to be paid by the company after making
an assessment, if the company had refused to make an assessment,
I am inclined to the opinion that an action at_1aw might be main-
tained, especially if there was no provision in the policy itself forbid-
ding it. But since the policy here does not Hx upon the company an
absolute liability to pay any particular sum, but only a liability to
pay the proceeds of a particular assessment, to be levied in a par-’
ticular way; and since it further provides that the company shall
only be liable in a proceeding to compel it to make the assessment,-
we are of the opinion that an action at law cannot, at least in the e
first instance, be maintained. However inequitable such a contract
may be, it is undoubtedly within the power of the parties to enter
into it, and therefore we think that the only remedy, according to
the practice of this court, and under the terms of the policy, is by a
proceeding in chancery to compel a specific performance, The`de-
murrer to the petition must, therefore, be sustained, but- the plaintiffs
may, if they choose, have leave to ile a bill to compel the assessment
in accordance with the contract. ~ ` ‘
Umrmn Srums v. Lane. _ I v
District Court, S. D. New York. August 23, 1883.) ’ · D
1. Cusrous DUTIEB—RELIQUIDATION—ACT Jima 22, 1874, 6 2I+·LIMITATION.
Section 21 of the act of June 22, 1874, (1 Supp. Rev. St. 81,) is iu the nature
of a statute of limitations, as respects the government’s right to reliquldate du-.
ties, and limits this right, if the duties have been paid, to one year after entry, .
in the absence of fraud or protest, and any such reliquidation after that period
is void; but if such reliquidation be lawfully made within the year, the statute
s not a limitation upon a suit to collect the duties accordingly, and such suit
may be brought at any time afterwards. . . V 2
2. Shun-**Assnr1cm or PROTEBT." ., ‘
V » The words " inthe absence of protcst" mean the absence of any existing pro-
test pending and in force at the time of the reliquidation, not a protestwhich
hlaphlipcome spent through a previous liquidation of duties in accordance .
. ' l