count books which are to be left open for inspection, and by monthly balance sheets which are to be posted in the office of the company. § 2863. Statement of debts. The statutes as to reports do not contemplate that the officers shall report a mere possibility of debt," an unliquidated demand founded on tort, or a liability on a covenant for title, which is contingent only. And the mere omission of certain liabilities of a company from a statement of its aggregate indebtedness has been held not to impose liability for a penalty under a statute as to false reports.10 § 2864. Statement of assets. Under a statute requiring a report of the assets of the corporation, the actual value of the property must be given in good faith. The officers are bound to know that the report or certificate will be given that meaning. And where a statute provides that the annual report of a corporation shall state the amount of its assets or the amount which its assets at least equal, a report that the assets "do not exceed" a specified sum does not comply with the law.12 § 2865. Receipts and disbursements. Where, as is sometimes the case, the statute requires the annual statement to give in detail the receipts and disbursements of the corporation, a report which states that the accounts are not kept in such a way that a detailed statement can be given, is insufficient.13 § 2866. Report as to capital stock. Under some statutes the report must state the amount of capital of the corporation and the proportion actually paid in.14 6 The statute (Act of April 23, 1880; St. 1880, p. 400), entitles stockholders to information as to manner in which the business of mining corporation is conducted, receipts and disbursements, wages paid, value of ore shipped and discoveries of ore. Eyre v. Harmon, 92 Cal. 580, 28 Pac. 779. The balance sheet, which is usually different from an itemized account, is a paper which shows a "summation or general balance of all accounts" but in particular the items going to make up the several accounts. Eyre v. Harmon, 92 Cal. 580, 28 Pac. 779. 7 Giddings v. Holter, 19 Mont. 263, 48 Pac. 8. Giddings v. Holter, 19 Mont. 263, 48 Pac. 8. 9 Giddings v. Holter, 19 Mont. 263, 48 Pac. 8. 10 Butler v. Smalley, 101 N. Y. 71, 4 N. E. 104. 11 Heard v. Pictorial Press, 182 Mass. 530, 65 N. E. 901. 12 Lilienthal v. Betz, 61 N. Y. App. Div. 601, 70 N. Y. Supp. 920, aff'd 172 N. Y. 643, 65 N. E. 1118. 13 State v. Fenn, 60 Kan. 306, 56 Pac. 483. 14 Thatcher v. Salomon, 16 Colo. App. 150, 64 Pac. 368. Under the statutes as to false reports, it has been held that a report is not false where it states that the capital stock is paid in full, although land representing the consideration has become valueless.15 § 2867. Signing and verification. The report or statement which is filed or published must conform to the requirements of the statute as to the particular officers and the number of them signing it,16 and as to the signing and verification.17 However a report signed 15 Giddings v. Holter, 19 Mont. 263, 48 Pac. 8. Under Mass. Rev. Laws, c. 110, § 44, providing that a detailed statement of real or personal property received in payment for stock must be filed, a statement that stock was paid for in cash and invested in property was an evasion of the statute and rendered the directors liable under § 58, cl. 5, as to reports, it appearing that the stock was paid for by checks which were returned to the subscribers in exchange for their business which the corporation was organized to conduct. Harvey-Watts Co. v. Worcester Umbrella Co., 193 Mass. 138, 78 N. E. 886. Furthermore, under this statute, a payment in cash which is returned to the subscriber by way of a loan on his note is equivalent to an acceptance of the note in the first instance, and is an evasion of the statute. Harvey-Watts Co. v. Worcester Umbrella Co., 193 Mass. 138, 78 N. E. 886. But a director cannot be held chargeable with knowledge of the return of his subscription money to a subscriber by way of a loan merely because the bylaws provide that no loan shall be made except pursuant to a vote of the directors, where no vote on the loan in question is shown, since it cannot be assumed that vote was cast. Harvey-Watts Co. v. Worcester Umbrella Co., 193 Mass. 138, 78 N. E. 886. It seems that the directors will not be held liable on the ground that they knew that the certificate was false where they acted on advice of coun IV Priv. Corp.-51 sel that the payment for stock subscribed constituted a cash payment, even though the counsel so advising had subscribed and paid in cash for two shares of the stock. HarveyWatts Co. v. Worcester Umbrella Co., 193 Mass. 138, 78 N. E. 886. 16 International Bank of St. Louis v. Faber, 86 Fed. 443; International Bank of St. Louis v. Faber, 79 Fed. 919; Miller v. White, 50 N. Y. 137; Leonard v. Faber, 52 N. Y. App. Div. 495, 65 N. Y. Supp. 391; Glens Falls Paper Co. v. White, 18 Hun (N. Y.) 214; Westerfield v. Radde, 67 How. Pr. (N. Y.) 204, 12 Daly (N. Y.) 450. As to the provisions governing the execution of corporate instruments generally, see §§ 1441-1492. Under N. Y. Laws 1848, p. 57, § 12 (2 Rev. St. 5th Ed. 661), requiring annual reports, if the president and a sufficient number of trustees fail to sign the report, or the officers fail to verify it, a trustee who attempts to comply with the statute is liable as well as those who refused to do their duty. Miller v. White, 50 N. Y. 137. Under Colo. Gen. St. § 252, liability results from failure to perform the statutory duty, and it makes no difference whether the defaulting trustee did or did not sign the report. Matthews v. Patterson, 16 Colo. 215, 26 Pac. 812. 17 International Bank of St. Louis v. Faber, 86 Fed. 443; International Bank of St. Louis v. Faber, 79 Fed. 919; Shanklin v. Gray, 111 Cal. 88, 43 Pac. 399; Colorado Fuel & Iron Co. v. by six trustees sufficiently complies with a statutory requirement that it be signed by a majority, even though the original by-laws provided for twelve trustees, where an amendment to the by-laws, acted under for a number of years without objection, had reduced the number to nine, notwithstanding there had been a failure to comply with statutory requirements as to filing a certificate of the fact of such reduction of the number of trustees.18 The lack of verification cannot be excused because inconvenience is imposed upon the officers,19 and if, in clear and unambiguous language, the statute requires verification, an opinion of counsel to the contrary does not relieve from the penalty imposed.20 An annual statement verified by the president and vice-president does not relieve directors from liability where the statute requires verification by the secretary and treasurer.21 Where the law requires an annual report to be verified by the oath of "the president or vice-president and treasurer or secretary," the president or vicepresident and treasurer or secretary must sign the report. Verification by the president alone is not sufficient.22 Verification may be Lenhart, 6 Colo. App. 511, 41 Pac. 834; Manhattan Co. v. Kaldenberg, 165 N. Y. 1, 58 N. E. 790, rev 'g 27 N. Y. App. Div. 31, 50 N. Y. Supp. 265; Hardman v. Sage, 124 N. Y. 25, 26 N. E. 354, aff'g 47 Hun (N. Y.) 230; Bolen v. Crosby, 49 N. Y. 183; Leonard v. Faber, 52 N. Y. App. Div. 495, 65 N. Y. Supp. 391; Noble v. Euler, 20 N. Y. App. Div. 548, 47 N. Y. Supp. 302; Glens Falls Paper Co. v. White, 18 Hun (N. Y.) 214; Brown v. Smith, 13 Hun (N. Y.) 408, aff'd 80 N. Y. 650; Shultz v. Chatfield, 17 N. Y. Misc. 264, 40 N. Y. Supp. 1081. Under the New York Manufacturing Act (L. 1848, c. 40), §§ 10, 11, requiring certificates of the amount of capital paid in to be recorded, certificates not sworn to but simply acknowledged are insufficient. Hardman v. Sage, 124 N. Y. 25, 26 N. E. 354, aff'g 47 Hun (N. Y.) 230. 18 Wallace & Sons v. Walsh, 125 N. Y. 26, 11 L. R. A. 166, 25 N. E. 1076. 19 Shanklin v. Gray, 111 Cal. 88, 43 Pac. 399. 20 Shanklin v. Gray, 111 Cal. 88, 43 Pac. 399. 21 Rhodes v. Hinds, 79 N. Y. App. Div. 379, 79 N. Y. Supp. 437. 22 Manhattan Co. v. Kaldenberg, 165 N. Y. 1, 58 N. E. 790, rev'g 27 N. Y. App. Div. 31, 50 N. Y. Supp. 265. Under N. Y. Stock Corp. Law (L 1892, c. II) § 30, requiring the annual report to be verified by the oath of the "president or vice-president and treasurer or secretary," the president and vice-president are placed in one class and the secretary and treasurer in another, and each may act for the other in the same category but only in conjunction with one from the other class. Manhattan Co. v. Kaldenberg, 165 N. Y. 1, 58 N. E. 790, rev'g 27 N. Y. App. Div. 31, 50 N. Y. Supp. 265. Where the evidence tended to show that the president of a corporation who was acting as secretary and treasurer in place of an officer who had resigned, verified the report without reference to other offices of which he was a de facto incumbent, there sufficient, however, where there is an inadvertent omission to sign one of the duplicates of the report which is filed.23 § 2868. Seal. Where a statute requires the corporate seal to be affixed to the annual report, it has been held that the affixing of such seal is a mere matter of form,24 and, in the absence of proof to the contrary, it will be presumed that the word "seal" in quotation marks, attached to the report, is the true seal of the company.25 IV. PUBLICATION AND FILING. § 2869. In general. Directors or other officers who wish to be relieved from liability under the statutes as to annual reports must comply with the statutory provisions as to the filing or publishing of the report, or both filing and publishing, when both are required.26 The law is not complied with where the report is made out, signed and verified and then left in the office of the corporation,27 and the directors cannot relieve themselves from responsibility by intrusting the duty to file the report to another who fails to perform it.28 It has been held, however, that the court may decline to impose liability upon the officers where the failure to file the report has in no wise misled or caused injury to creditors.29 That a certificate of paid up capital stock was actually made does not relieve directors from a liability imposed by statute from which they are exempted in case the was substantial compliance with the statute, even though the president did not affix to his signature the title of office which he filled. Manhattan Co. v. Kaldenberg, 165 N. Y. 1, 58 N. E. 790, rev'g 27 N. Y. App. Div. 31, 50 N. Y. Supp. 265. The statute does not demand the performance of impossibilities, and where directors diligently attempted to fill a vacant office of secretary and treasurer, but failed to do so, a report is sufficient when verified by the president and signed by a majority of the directors. Manhattan Co. v. Kaldenberg, 165 N. Y. 1, 58 N. E. 790, rev'g 27 N. Y. App. Div. 31, 50 N. Y. Supp. 265. 23 Manhattan Co. v. Kaldenberg, 165 N. Y. 1, 58 N. E. 790, rev'g 27 N. Y. App. Div. 31, 50 N. Y. Supp. 265. As to the necessity of a corporate seal, see §§ 752-756. 25 Dart v. Hughes, 49 Colo. 465, 109 Pac. 952. See also § 753. 26 Whitney v. Cammann, 137 N. Y. 342, 33 N. E. 305; Cameron v. Seaman, 7 Hun (N. Y.) 601, rev'd 69 N. Y. 396, 25 Am. Rep. 212; Miller v. White, 59 Barb. (N. Y.) 434, 10 Abb. Pr. (N. S.) 385; Gildersleeve v. Dixon, 6 Daly (N. Y.) 76; Whitney v. Cammann, 28 Jones & S. (N. Y.) 391, aff'd 137 N. Y. 342, 33 N. E. 305. 27 Whitney v. Cammann, 137 N. Y. 342, 33 N. E. 305. 28 Whitney v. Cammann, 137 N. Y. 342, 33 N. E. 305. 29 Stafford v. St. John, 164 Ind. 277, 73 N. E. 596. certificate was "made and filed." The filing, in such case, has the effect of giving the facts publicity, and without that the main purpose of the statute is not accomplished.30 Where the statute requires the directors to cause a monthly balance sheet or itemized account to be made and to post it in a conspicuous place in the office of the company, a failure to comply therewith renders the directors liable to the penalty provided by the statute.31 33 § 2870. Time of filing. The various statutes differ as to the time of filing reports,32 and, as a rule, the report or statement must be filed or published at or within the time prescribed by the statute,3 although in some cases the courts have refused to hold the directors liable for delay, where no injury resulted or the delay was unavoidable.34 And under some statutes, it is sufficient if the report is made within the time mentioned. It may be filed or published within a reasonable time thereafter.35 30 Cannon v. Breckenridge Mercantile Co., 18 Colo. App. 38, 69 Pac. 269. 31 Eyre v. Harmon, 92 Cal. 580, 28 Pac. 779. 32 Cal. Act of April 23, 1880 (St. 1880, p. 134), clearly requires that an account or balance sheet shall be made and posted on the first Monday of the month. Schenck v. Bandmann, 81 Cal. 231, 22 Pac. 654. Mills' Colo. Ann. St. § 491, requires every corporation, annually, within sixty days from the first of January, to make a report stating the amount of its capital. Fraser & Chalmers v. Mines Leasing Co., 16 Colo. App. 444, 66 Pac. 167. See also Bradford v. Gulley, 10 Colo. App. 146, 50 Pac. 314. Where the corporation filed its certificate designating an agent, and other credentials required by Mills' Ann. St. §§ 499, 500, on February 20, 1896, and this was its first appearance in state, and the annual report was filed February 13, 1897, within one year thereafter and within sixty days after January 1st, the statute (§ 491) as to annual reports was complied with. Fraser & Chalmers v. Mines Leasing Cc., 16 Colo. App. 444, 66 Pac. 167. Mass. St. 1851, c. 133, §9, as to annual certificate is modified by St. 1854, c. 438, § 1, so that certificate containing required statements as to the condition of the corporation on first day of month then next pending, may be filed at any time in each year. Bond v. Clark, 6 Allen (Mass.) 361. 33 Cincinnati Cooperage Co. V. O'Keefe, 44 Hun (N. Y.) 64, aff'd 120 N. Y. 603, 24 N. E. 993; Duckworth v. Roach, 8 Daly (N. Y.) 159, aff'd 81 N. Y. 49; Butler v. Smalley, 3 How. Pr. N. S. (N. Y.) 256. See also Githers v. Clarke, 158 Pa. St. 616, 28 Atl. 232. 3 34 McComb v. Belknap, 30 Abb. N. Cas. (N. Y.) 119; Butler v. Smalley, How. Pr. N. S. (N. Y.) 256. 35 Butler v. Smalley, 101 N. Y. 71, 4 N. E. 104. It has been held that, under a stat ute (Laws N. Y. 1848, c. 40, § 12) requiring the annual report of the trus tees of a corporation to be published and filed within twenty days after January 1st, it is not necessary that the report be filed and published within the twenty days, where it is prepared, signed and verified within the twenty days, and is filed and pub |