gate corporation. It must always appear by attorney; for it cannot appear in person, being, as Sir Edward Coke says, (10 Rep. 32,) invisible, and existing only in indentment and consideration of law. It can neither maintain or be made defendant to an action of battery, or such like personal injuries. It cannot commit treason, or felony, or other crime, in its corporate capacity. It cannot be executor or administrator, or perform any personal duties. It cannot be seized of lands to the use of another, neither can it be committed to prison, or outlawed. The reason for all which is, that it has not a corporal existence, which would be essential in order that it be liable in like manner with an individual. In England, where the ecclesiastical courts exercise powers and jurisdictions peculiar to the laws of that country, a corporation is exempted from excommunication; "for it has no soul," as is gravely observed by Sir Edward Coke. (10 Rep. 32.)

. A corporation may be dissolved by act of legislature, by surrender of its franchises, by forfeiture of its charter through the abuse of some of its privileges, or the commission of illegal acts, or through the omission of others which are obligatory upon it. Its debts, to or from it, in case of its dissolution, do not survive to the individuals composing it, so that they may be benefited by, or held responsible for them, in their individual capacity.

Thus much has been said respecting the general nature of corporations as is deemed necessary to our subject. We shall next consider the dif ferent kinds of fire companies as they exist in the city of New York; and all subsequent remarks will have this local reference. They are of two sorts first, those that have a fixed capital determined by the legislature, and divided into a certain number of shares, which must be subscribed for and paid in, and secured according to the provisions of the charter. The number of directors is also fixed, from among whom one is selected to act as president. The directors are annually chosen by the stockholders for one year, and in case of death or resignation others may be appointed as may be provided for by the by-laws. A company is not allowed to commence the business of insuring until the whole of the capital stock shall have been paid in and secured, and an affidavit of that fact been made by the president and secretary, and filed in the clerk's office. The whole assets of the company are liable for losses, so that in the event of a large loss, the stockholders forfeit all their interest before the insured is affected. Dividends are made out of the surplus profits arising from the interest on the capital, and from the receipt of premiums, after all losses, debts, and expenses are paid, provided the capital is unimpaired; but no dividend can be made while the capital stock is impaired, or until such deficiency or loss of capital is made good.

Charters which have been obtained in the state of New York, since the year 1830, usually have a clause inserted in them, that they "shall possess the general powers, and be subject to the provisions of the eighteenth chapter of the first part of the Revised Statutes, so far as the same are applicable and have not been repealed."

The second class of insurance companies are those which are denominated mutual companies. In these every insurer becomes a stockholder during the period for which he shall remain insured, and in amount, in proportion to the premium which he pays into the company; and for this amount he is liable in case of a loss. The capital is not fixed or deter

mined as in the case of the former companies, but is in proportion to the amount of premiums on hand, which constitute the capital stock. The profit or dividend is paid to the insurers or stockholders, in proportion to the amount of money paid in by them for premiums, in the same manner as shareholders in other companies. A president and board of trustees are elected in like manner, and for the performance of like duties, as the president and directors of those companies that are not mutual. There is a clause generally inserted in their charters that no policy shall be issued until application for insurance shall have been made to a certain amount, so that they may be provided for a loss at their commencement, if any should happen to be sustained.

CHAPTER III.

Of the policy-insurance, how effected-what covered by the policy-nature of the contract—how insured forfeits his right to recover-notice to be given of other insurance-policy, how assigned and transferred. "Policy is the name given to the instrument by which the contract of indemnity is effected between the insurer and the insured; and it is not, like most contracts, signed by both parties, but only by the insurer, who on that account, it is supposed, is denominated an underwriter. Notwithstanding this, there are certain conditions, of which we shall hereafter have occasion to speak, to be performed as well by the person not subscribing, as by the underwriter, otherwise the policy will be void." (Park on Insurance, c. 1.).

A proper representation of the character and situation of the property sought to be insured, and of all the circumstances which would in any way affect its risk, or personal inspection by the insurer or his agent, which is the usual way when convenient, is necessary to determine the rate of premium. This paid, and the policy received, the property is insured to the amount agreed upon and specified in the policy.* It should be remembered that no property is covered by the policy except that owned by the insured; hence goods stored, or held in trust, or on commission, must be insured as such. If different kinds of property are intended to be included in one policy, they must be designated with reasonable particularity, for the fixtures of a store would not be included if merchandise or stock only were mentioned; and so of similar cases.

Insurance of this sort is a contract by which the insurer, in consideration of the premium which he receives, undertakes to indemnify the in

It is a custom among the companies to insure before the policy is made out, or even the premium paid. The correctness of this manner of doing business is very much questioned, however convenient it may sometimes be; no doubt, when the contract is in good faith, and a loss should under such circumstances be sustained, it would be paid by honorable men; but if the insurers should fall back upon their legal rights, the insured would not be able to recover, if the premium had not been paid. This is undoubtedly so; for the claimant could only plead a verbal promise, without consideration; but if he had paid the premium, although the policy had not been delivered, a court of equity would compel the insurer to deliver a policy, although the property might then be destroyed; and upon the policy so obtained, through the intervention of a court of equity, an action might be sustained in a court of law; at least this is the opinion of those legal gentlemen who have been consulted upon this point.

sured against all losses which he may sustain in the property insured, by means of fire, within the time limited in the policy. The following exceptions, however, are usually made in the policy: "except those which may happen by means of any invasion, insurrection, riot, or civil commotion, or any military or usurped power;" and in some cases by lightning. We are, therefore, next to consider upon what occasions the insured annuls his policy, and is prevented from recovering in case of a loss. The contract may be void from the beginning, if the knowledge of any fact is withheld which might prevent the insurers from taking the risk, or of charging a higher rate of premium. "In every contract between man and man, openness and sincerity are indispensably necessary to give it its due operation; because, fraud and cunning once introduced, suspicion soon follows, and all confidence and good faith are at an end. No contract can be good, unless it be equal; that is, neither side must have an advantage by any means of which the other is not aware. This being admitted of contracts in general, it holds with double force in those of insurance, because the underwriter computes entirely* from the account given by the person insured, and therefore it is absolutely necessary to the justness and validity of the contract, that this account be exact and complete. Accordingly the learned judges of our courts of law, feeling that the very essence of insurance consists in a rigid attention to the purest good faith and the strictest integrity, have constantly held that it is vacated and annulled by any the least shadow of fraud or undue concealment.' (Park on Insurance, c. 10.)

There are several ways also by which the insured may forfeit his right to recover for a loss, between the time of the date of the policy and its termination. As it would be impossible to mention all the circumstances which would have this effect, it may be considered as a general rule, that whatever tends to increase the risk of the subject insured, should be made known to the insurer, and his consent endorsed upon the policy; as, if A has his building insured, privileged for the storing of tea, and afterwards, without obtaining the consent of the insurer, uses the building for a more hazardous business, such as drugs, the policy would be void.

Notice must also be given of all previous insurance which may be binding at the date of the policy, and of any subsequent insurance which may be obtained upon the property, that a memorandum of it be endorsed upon the policy, or otherwise acknowledged in writing. An omission to do this would be a bar to recovery; this condition being always inserted in the policy, forms a part of the contract. The necessity for this will be seen if we consider the temptation for persons to fire their property, if allowed to procure insurance beyond its value.

Policies of insurance are not, in their nature, assignable; the contract being to indemnify the person named in the policy against loss, of course the insured would not be allowed to elect another to stand in his place and stead, without the permission of the insurer; and as the contract is in writing, therefore the assignment or permission must also be in writing. A departure from this rule would work hard against the insurer, for, doubtless, in many cases, he is governed in taking the risk and fixing the rate of premium in a great measure by the character of the insured; and

* This expression should be limited, it being customary for the insurer to examine for himself, personally, or by his agent.

if assignments were allowed without the insurer's permission, he might, by such assignment, be placed in a much worse condition than he was in by the original contract. This should not, however, be construed to affect the interest of the insured's executors, administrators, and assigns, who stand in his place without the necessity of an assignment.

Insurance may also be transferred from one building or property to another, in case of a removal, &c., with the consent of the insured, such transfer being endorsed on the policy. The insurer has his election to assign or transfer, or not, and in case of a refusal, a rateable proportion of the premium on the risk for the unexpired time will be refunded, and the policy cancelled.

ART. V.-ANNUAL REPORT OF THE MERCANTILE LIBRARY ASSOCIATION.

THE Twentieth Annual Report of the Board of Directors of the Mercantile Library Association of New York, which we here subjoin, will be found a clear and interesting document, not only to members of the association, but to all who take an interest in the cause of intellectual improvement. It enters into a view of the condition of this noble monument of mercantile liberality, and proposes judicious plans for the increase of its prosperity. The advantages of the organization of similar associations in the commercial citics of our country, must be obvious to those who know the amount of moral and intellectual good that has been accomplished by this body, and we are glad to perceive that the young men of the neighboring cities are awakening to the importance of the subject. The institution is under obligations to the officers of the past year for the faithful performance of their duties; and we doubt not that those who have been connected with the direction of its affairs, receive full compensation for their services in the cordial thanks of its members. Mr. Silliman has presided with dignity, and the report from his pen is in keeping with his well-sustained character, as president of this flourishing asso

ciation.

Gentlemen of the Association

ANOTHER year rolling onwards since our last annual meeting, is numbered with the past, and those to whom you then intrusted the interests of this institution, now stand before you to render an account of their stewardship. The earlier part of that year, like several of its predecessors, dark and gloomy to the whole country, has been peculiarly so to the mercantile community. The honest merchant, struggling to meet his engagements and sustain his commercial reputation, has been in many, too many instances, compelled to fold his hands in despair, as his means have sunk and disappeared in the ruins of a prostrate and helpless currency: property upon which he had based his contracts, fading from his view like the mirage of the desert, on his attempt to realize it; or, like the coin which the evil one is said to barter for men's souls, turning in his hands to worthless dross and stones of state. The merchants, in the last several years, have passed through a fierce ordeal of toil, of trouble and disappointment, that in the annals of the commerce of this country is unparalleled.

Happily, gentlemen, the clouds are rolling from the horizon; the sun again

appears in the distance, and those stout hearts and enterprising spirits have yet before them release from existing embarrassments, and the prospect of future prosperity. The Mercantile Library Association has felt in some measure, as of necessity it must, a check in the influence of these times. Large numbers of clerks have been obliged, from stagnation in business, to relinquish their situations, while curtailment of means and absence from the city have induced many, it is supposed, to temporarily withdraw from the Association; fewer, however, than might, under the circumstances, have been naturally expected.

LIBRARY.-There have been added to the library, during the current year, 501 members. Withdrawn during the same period, 501 members. Which will leave the total number of members precisely the same as at the date of the last annual report.

The number of members represented by the last annual report was A large number of inactive and merely nominal accounts have been hitherto represented as existing, from the inability of the board of direction to close them, no provision to that effect having existed in the constitution; but under "Article 7" of the amended constitution, this board have closed all that have not been used for a period of two years and more, amounting to

Which will leave a total of members, on the 1st of January, 1841,

Of these there are members paying annually, at the rate of $2,

5,301

1,715

3,586

The number of volumes contained in the library at the date of the last annual report, was

To which, during the current year, have been added by purchase,

- 21,906

Making the total number of volumes in the library at the present time, 22,296 The Reading Rooms are supplied with 62 foreign periodical publications, 43 American, and 10 newspapers; making a total of 115 periodical publications. There are also on hand about 800 copies of the Catalogue unbound, and 80 copies bound.

The library is in good condition, with the exception of a number of volumes which require binding. This evil, which want of funds has prevented the board from having remedied, will, it is presumed, soon be rectified by their

successors.

The board regret that they are compelled to call the attention of the members to the very improper habit of disfiguring the books by comments, which are for the most part frivolous and uncalled for. This custom, the propriety of which in a private library is very questionable, is in the highest degree improper in one that is public.

TREASURY.-From over-estimate of the income of the year 1839, the purchases of that year exceeded its receipts, and it was deemed expedient by this board to refrain from other than the necessary current expenditures until all the debts of the institution were liquidated. That resolution has been sternly adhered to, and indeed could be, with the more propriety, from the fact that the larger part of the debt was incurred for works of sterling merit and value; considerable in number, of beautiful editions, and in the selection of which great judgment and information were exhibited.