show that the company had any corporate existence, the evidence offered was properly rejected; and the instructions requested to be given to the jury on the part of the plaintiff and refused by the court, are inconsistent with this exposition of the law, and therefore, although as abstract propositions of law they may be correct, so far as they go, yet for the reasons given, I think they tended to mislead the jury in this case.

The court, however, instructed the jury that in order to justify a recovery against the plaintiff in error, "the burden is upon the plaintiff (now defendant in error) to establish by a preponderance of evidence the elements necessary to make a partnership between Abbott and some or all" of the parties sued; and further, that "if he, Abbott, were a member of the concern styled The Register Smelting and Refining Company, with which the plaintiff (now defendant in error) transacted the business, or if he held himself out as such, as president or otherwise, he is liable in this action." The question of fact for determination by the jury seems, therefore, to have been fairly submitted to them by these instructions; and the instruction asked by the defendant in error, and excepted to by plaintiff, is substantially the same as those given by the court as above stated, and constitutes no sufficient ground for disturbing the judgment.

Judgment affirmed.

'BONNELL V. GRISWOLD ET AL. BLAKE V. GRISWOLD

ET AL.

(68 New York, 294. Court of Appeals, 1877.)

Distinction between liability for no report and false report. Assuming that under the laws of New York, causes of action against the trustees of a corporation for omission to file an annual report, and for making and filing a false report, may be united in one complaint, and that a false report may be regarded as no report; yet, to justify such union each cause of action must affect all the parties. For the omission, all the trustees are liable. For the false report, only those are liable who do the act.

1 Reported below, 3 T. & C. 557.

Demurrer-Complaint qualified by exhibit. H., one of the defendants, demurred to a complaint which alleged that the defendants made and filed a report, a copy whereof is hereto annexed, and that defendants signed the report knowing it to be false. The annexed copy did not purport to be signed by H. Held, that by demurring, H. did not admit that he signed the report, but that the general averment in the complaint that defendants signed, was limited by the copy annexed to those who appeared by it to have signed.

Facts, but not conclusions of law, are admitted by a demurrer.

Appeals from the General Term of the Supreme Court, Third Judicial Department.

The judgments of the Supreme Court were in favor of the defendants, Wheeler, Griswold and Hoysradt, reversing the orders of the inferior court by which their demurrers to the complaints in both of the above entitled causes had been overruled. The Supreme Court directed judgments for the defendants upon the demurrers.

The actions were substantially alike. They were brought by plaintiffs as creditors, against the defendants as trustees, of "The Iron Mountain Company of Lake Champlain," a corporation organized under the general manufacturing act: Chap. 40, Laws of 1848.

The substance of the first count in each of the complaints. was, that defendants and John A. Griswold, deceased, were trustees of said company, and that they omitted to make, publish and file an annual report within twenty days after January 1, 1870.

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The second count alleged that "the defendants and said John A. Griswold, on the 13th day of January, 1870, made and filed a certificate or report, a copy whereof is hereunto annexed, marked B, and the said defendants and said John A. Griswold published said certificate or report. That said report was false in a material representation; that said defendants and the said John A. Griswold signed said certificate, knowing it to be false, as herein before stated." The copy annexed commenced thus: "We, George M. Wheeler, John A. Griswold, Chester Griswold and C. D. Schubarth, being trustees of the Iron Mountain Company of Lake Champlain, and a majority thereof, and the said George M. Wheeler being president of said company, do hereby cer

tify and declare," etc. It was signed by the four trustees so named in the body and by no others.

There was a third count which is not considered in the opinion and hence not reported.

The defendants first named demurred upon the grounds. that the two causes of action were improperly united, for the reason, among others, that the second cause of action did not affect all the parties to the action, as defendants Hoysradt, Corning and Burleigh did not sign the certificate therein referred to.

A. POND, for appellant.

WM. C. HOLBROOK, for respondents.

PER CURIAM.

Assuming, without deciding, that causes of action against trustees of a corporation under the twelfth and fifteenth sections of the Manufacturers' Act referred to, may be united in one complaint, and that a false report may be regarded as no report, yet in order to justify such union, each of the causes of action must affect all the parties to the action: Code, § 167. For an omission to file any report, all the trustees are liable, jointly and severally to the creditors; for making and filing a false report, only such of the trustees as do the act are liable. The language of the act is "all the officers who shall have signed the same, knowing it to be false, shall be jointly and severally liable."

The contention is, whether the complaint should be construed as alleging that all the defendants, including Iloysradt, signed the report alleged to be false. The allegation is, that the defendants and said John A. Griswold, on the 13th day of January, 1870, made and filed "* a certificate or report,

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a copy whereof is hereunto annexed, marked B." Also, "that said defendants and John A. Griswold signed said certificate knowing it to be false," etc. The copy annexed purports to be signed by Griswold and three of the defendants, and not by Hoysradt, Burleigh or Corning. The body of the certificate

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shows that it was made only by the persons who signed it. It commences "We," followed by the names of the persons who signed the instrument. We think that by annexing a copy of the alleged report to the complaint referring to it, together with the intrinsic evidence furnished by the copy itself, the general allegation of the complaint is qualified so as substantially to aver that the defendants, whose names appear upon the copy, actually signed the same, and it follows that the defendant Hoysradt did not, by demurring, admit the fact that he signed the report, nor did the other defendants, by demurring, admit the fact. Facts and not conclusions of law are admitted by a demurrer. Averments as to the meaning of a contract set forth in a complaint are not admitted by a demurrer: 21 Wall. 430.

The question here is, what was the fact alleged? And we think the allegation is, that the defendants who purport by the copy annexed to have signed, did in fact sign. There is an inconsistency in the two allegations. The general allegation that the defendants signed, etc., would include all the defendants; but the additional allegation that the defendants signed, as appears by a copy of the instrument hereto annexed, qualifies and limits the general averment to those appearing to have signed, by the copy.

It is not the case of an allegation of signing, a proper copy of which is given without any signature. Here the copy purports to contain the names of the persons who signed the paper in the body of it, and also the signatures. There is no room for intendment that other signatures were affixed, and hence it can not be presumed that there was an intention to aver others. The authorities cited by the counsel for the appellants are not inconsistent with these views. In Paige v. People, 6 Park. 683, the question was, whether the forging of a sealed instrument was averred in the indictment, and it was held that it was, under the averment of the forging of a deed which ex vi termini imports a sealed instrument. WOODRUFF, J., remarked that the copy set out with the letters L. S. was not a sufficient allegation that it was under seal. In 40 Barbour, 164, it was held that an assignment of all property

1 Dillon v. Barnard,

of the assignor would convey property not specified in the schedule referred to.

These cases do not meet the case at bar for the reasons before stated, and without further elaboration, we concur with the opinion of MILLER, J., in the court below upon this and other points involved.

The judgment must be affirmed, with leave to plaintiffs to amend complaint, within twenty days after service of notice of entry of remittitur on payment of costs.

All concur; MILLER, J., not sitting.

Judgment accordingly.

THE FLAGSTAFF S. M. Co. OF UTAH, LIMITED, V. PATRICK ET AL.

(2 Utah, 304. Supreme Court, 1877-1880.)

Agent enjoined. When a corporation holds possession of its property by an agent, and such agent is discharged, and the possession of such property is taken by another agent duly authorized. Held, that if the possession of the latter is threatened by the former the discharged agent will be enjoined by the corporation from any interference with the possession Removing agent, no change of possession. The possession of the property

of a corporation by its agent is the possession of an agent for his principal, and the removal of such agent and the entry into possession thereof by a new agent is not a change of possession.

Agent holds at pleasure of principal. It is a general doctrine that an agent holds his authority at the pleasure of his principal, and the only exception to the rule is when the power of attorney held by the agent is coupled with an interest in the property, founded upon a valid consideration. 1 Powers of board of directors. When by the articles of incorporation it is provided that the board of directors shall have power to appoint and remove the agents of the corporation, the power thus given is a trust reposed in the directors alone, and they are not at liberty to enter into any agreement by which such power is surrendered to a stranger.

2 Removal of agents. The power to appoint and remove agents and the managers of the affairs of an incorporation, rests with the company itself and can not be shifted or transferred by any contract made by the board of directors.

Ultra vires. A corporation is not bound by an unauthorized contract made

1 Carey v. Philadelphia Co., 1 M. R. 349.

2 Davis v. Flagstaff Co., 2 M. R. 661.