the opinion of the Court was delivered by
Gbeen, J.:We think the absence of notice of assessments to the insured was fatal to the cause of action in this case, and therefore the judgment must be affirmed. The proceeding is adverse. The claim is founded upon a contract, and a recovery by judicial decree must be in accordance with the terms of the obligation sought' to be enforced. The premium note is not an absolute obligation, but only an engagement to pay, in such portions and at such times, as the directors may, agreeably to the acts of Assembly and the by-hiws, require.
The fifth paragraph of section thirty-one of the by-laws provides that, whenever an assessment is levied, the secretary shall give notice to the policy-holder of the amount due and the time of payment. It is plain, therefore, that there is no liability to pay anything, on the part of the insured, until an assessment has been made and notice has been given him of the amount due and the time -when it is to be paid. Nothing of that kind was done in this case, either prior to the attachment or to this suit. As the defendant could not know what amount he was to pay, or at what time, without a notice, the terms of his contract imposed no obligation upon him, and no adverse *320legal proceeding could be founded upon such an imperfect engagement. He not only violated no duty, but the duty did not exist until the stipulations upon which it was to arise had been complied with. We cannot regard the attachment as a substitute for the notice. It is only another form of judicial proceeding, which is as much in want of a compliance with the preliminary terms of the obligation as is the present suit. As this difficulty is fatal to a right of action, it is not necessary to consider the other matters arising on this record. »
Judgment affirmed.