delivered the opinion of the court, February 15th, 1886.
In this case an action was brought upon a certificate of membership in the corporation defendant, in and by which the defendant covenanted to pay to the plaintiff, upon the death of one Roland, the sum of $5 for every $1,000 maximum sum of benefit actually in force in the company upon which the mortuary assessments are paid, provided the amount so paid shall not exceed the maximum sum of $5,000. Roland died November 17th, 1880. Proof of death having been furnished, and the defendant not having paid the insurance money, the plaintiff, who was a creditor of the deceased, brought suit upon the certificate or policy, which was tried before a jury upon various defences made. A verdict for the plaintiff was rendered, upon which a general judgment was entered on March 21st, 1884, for $5,883. A rule for a new trial was discharged, and no terms of any kind were imposed *561upon the entry of judgment. Afterwards, on April 18th, 1884, the defendant presented an affidavit in the court below, stating that an assessment upon the members had been made and asking for a stay of execution, which was granted for thirty days. This rule was discharged on December 24th, 1884, but upon the same day the court made absolute another rule granted on December 6th, 1884, restricting the operation of the verdict, judgment and execution to assessments collected, and to be collected, by the company from its members. To this order the present writ of error has been taken. It will be seen that the life assured had ceased in November, 1880, which was more than four years prior to the order restricting the operation of the judgment to assessments upon members. It was more than nine months after the judgment was entered when the restricting order was made, and this order granted a further delay of indefinite extent for the purpose of enabling the defendant to raise the money by assessments in order to pay the judgment.
It is true the learned court below said that if at any time thereafter an attempt was made to overreach the plaintiff, or use the order as a means of delay, they would see that a remedy should be found to meet the state of facts, Since the restraining order was made a further delay of fourteen months has been incurred, and if there was no other reason than this for putting a stop to still more delay, it would be quite sufficient to justify us in removing the restriction.
We think, however, in view of the circumstances, the restraining order should not have been made. A period of nine months after final and general judgment on the verdict was quite sufficient to enable the defendant to raise the money by assessments if such a method was really intended. The mere fact that at the expiration of that period only $285 had been raised with which to pay almost $6,000, was highly persuasive evidence that either the company or its members did not intend to pay the judgment, if they could avoid doing so. All matters of defence against the claim had been heard and considered on the trial, after a long delay of nearly four years from the maturity of the claim. A general judgment without any limitation or restriction had resulted from the trial. We are not conscious of any reason which could suffice for a practical denial of the fruits of the judgment, except one-which referred the whole duty of payment to the mere will of the defendant or its members, and such a reason is not for a moment tenable. Even granting that assessments were the-source of payment contemplated by the parties to the contract, it cannot be considered that either the making or the payment of such assessments depend in any degree upon the *562mere option of the company or its members. We have examined the petition upon which the restricting order was granted, and we fail to discover any fact therein set forth which would justify interference by the court with due process to enforce payment of the judgment.
And now, February 15th, 1886, the order of the court below, making absolute the rule to restrain the operation of the verdict, judgment and execution, is reversed, and the record is remitted for further proceedings.