— In case of a loss the assessment must depend upon the number and amount of the policies which are to contribute. When a loss has occurred, it is a most material question to determine whether the assessment shall be made upon all or only on a portion of the policies, which may have been issued.
The right of the plaintiffs to maintain this action depends upon the validity of the assessments, which they seek to recover. If there has been no valid assessment, it is obvious that the present action is not maintainable.
By the original charter of the plaintiffs, the assessments, in case of loss were to be made upon all the policies issued. By the special Act, approved July 31, 1849, c. 250, authority is given to distribute the risks taken into three classes.
The burthen is upon the plaintiffs to show the validity of their assessments. Assuming what is denied and the determination of which is not necessary for the decision of this case, that the plaintiffs have by their acts accepted the change made in their charter by the Act of 1849, still no authority is perceived by which the present assessment can be regarded as valid.
By § 2, of the Act of 1849, it is enacted that “ all applications to said company for insurance, hereafter made, may be *526taken by said company under tbeir present Act of incorporation until the property to be insured in each class shall amount to fifty thousand dollars; when the risks thus taken may be classified, and the policies issued; the applications made under this section shall contain a provision for transferring the risk from the general company to a classified risk, when the property to be insured in the several classes shall amount to the fund aforesaid.”
It does not appear that the plaintiffs have ever had or now have the amount of fifty thousand dollars insured in their first class. On Jan. 1, 1850, the amount of risks taken and in force, which' according to the classification made would fall under the first class, amounted to $42,000. By the second section the division into classes could not then have been legally made. It does not appear that there has ever been a time in which there was a sufficient amount insured to constitute the first class. There could be no valid assessment upon the basis of a classification, before the classification itself could legally take place. The existence of the facts, which should precede a legal distribution of risks into classes, is not shown. Until their existence is established, the corporation could not classify their risks, nor make their assessments upon the basis of a division into classes. Plaintiff nonsuit.
Tenney, J., did not sit in this case.