Squires agt. Brown. The judge did declare that the due bill was only a liquidation or voucher for that debt, and he submitted the question to the jury, whether Richmond was authorized as the agent of the company to contract the indebtedness on their behalf. IV. The motion to dismiss the complaint was properly denied. The statute (Laws of 1848, ch. 40, § 9, p. 56,) in terms provides that the copy of any certificate of incorporation filed in pursuance of the act, certified by the county clerk, &c., shall be presumptive legal evidence of the fact therein stated, and requires that it be received as such evidence in all courts, &c. That certificate the plaintiff produced and gave in evidence. This prima facie established an incorporation under the act, and that the defendants were trustees on the 4th of April, 1856. It is made by the act presumptive evidence, and it is all the plaintiff was bound in the first instance to prove to show actual incorporation. Whether it was competent for the defendants to show that in fact the company never was formed; that this certificate was only an initiatory step; that no certificate was ever filed in the office of the secretary of state as the act required; and that the project was abandoned, will be presently considered; but the certificate made a prima facie case of an incorporation, and that the defendants were the trustees. He then gave proof to show that the company acted under the corporate name; that they became indebted to the plaintiff; and the allegation that no statement was filed as required by the act, not being denied in the answer, the plaintiff's case was prima facie made out; and it was proper to put the defendants to counter proofs or proof of their defence. V. The remaining questions arise upon the offer of the defendant Brown to show that he resigned his office of trustee before the first day of December, 1856; the offer of both defendants to show that there was a proposition made to form a company to be called the National Plate Squires agt. Brown. Glass Company, which should succeed to the business and capital of the old company (called "The National Plate Glass Works",) and that it was represented to the defendants that the old company was doing a good business and was out of debt; but that the stock was never subscribed for; that though the certificate was signed and filed in the county clerk's office as a step towards the formation of the new company, it was not filed with the secretary of state, because it was understood that the company was not to be formed until it was so filed, and the defendants discovered that the representations were false; that the old company was largely in debt, and their property levied on and sold to pay their debts, and defendants made up their minds not to have the company instituted, and as early as September, 1856, abandoned the enterprise of forming the new company; and finally, the request of the defendants' counsel that the jury be instructed that if they "believe that there was no corporation in existence subsequent to the 1st day of December, 1856, the defendants are not liable in this action." It must be assumed for the purposes of this appeal, that if the defendants had been permitted to give the proofs they offered, such proofs would have established the facts proposed to be established thereby; and our inquiry is, therefore, were the facts so proposed to be proved competent, or would they, if proved, establish or tend to establish any defence? And the questions so raised may be briefly stated: 1st. Can a trustee of a corporation organized under the act in question resign his trusteeship? 2d. If he do resign, does he become liable for the debts of the company on the subsequent default or neglect of the remaining trustees to make and file the annual certificate required by the act? 3d. Where individuals, with a view to the formation of a corporation under the act, are induced by false representations to consent, and as a step thereto sign and file a certificate Squires agt. Brown. in the office of the county clerk, but discover the falsehood of the representations, and abandon the enterprise of forming the corporation before any stock is subscribed, and without filing any certificate in the office of the secretary of state-will these facts exempt them from liability for debts contracted in the name of the company, on a subsequent default to make and file the annual certificate already mentioned ? In relation to the first two of the questions thus stated, it seems to me that there is little room for doubt. If a trustee of such a corporation, acting in good faith, desires to terminate his official term, I perceive nothing in the nature of his office which forbids his resigning. Although called trustees in the act authorizing such incorporations, those officers are not trustees in the sense of being holders of the legal title to the property in trust for others, but they are made by the act (§3) managers of the stock, property and concerns of the company, while the company itself, as a corporation, holds (§ 2,) the real and personal property necessary for carrying on its operations. And regarding a trustee as a mere manager or director, there is no inconsistency in allowing him the opportunity to resign that office, no more than there would be in permitting the president or other officer to resign. The fourth section of the act expressly contemplates a resignation by a trustee, provides for the exigency, and so impliedly sanctions it. It enacts that "when any vacancy shall happen among the trustees by death, resignation or otherwise, it shall be filled for the remainder of the year in such manner as may be provided for by the by-laws of said company." The power and right to resign the office of trustee is therefore, I think, clear, and such a resignation in the very terms of the statute creates a vacancy. With such resignation the powers of the resigning trustee cease, and it would seem a necessary corollary that his duties also cease. Squires agt. Brown. Shall the subsequent default of other trustees, over whom he has no control, subject him to liability for the debts of the company? If it can, then he is made liable for a default in no sense his own, and is subjected to a penalty for the non-performance of an act which (when it should have been performed) he could not do himself, nor by any means within his control compel others to do. No such injustice, and, I might say, no such absurdity, results from the provisions of the act in question. When it is said in section twelve of the act, that "every such company shall, within twenty days from the first day of January, annually make a report which shall be published," &c., " and if any of said companies shall fail so to do, all the trustees of the company shall be jointly and severally liable for all the debts of the company then existing, and for all that shall be contracted before such report shall be made, it means all those who are trustees when the company shall so fail-all those whose duty as managers it is to see that the report is made. As well might it be said that all who have ever been trustees are liable for such a subsequent default, as that any one who, though once a trustee, has by resignation ceased to be one, is liable. The clause making the trustees liable, until such report is made, shows that the liability is imposed upon persons who have it in their power to limit their liability by causing the report to be made and filed. I think it as clear as it is just, that the penalty imposed by this section falls upon those whose duty has been neglected, and not upon those who having resigned, had no duty to perform in the matter. This construction of the act is sustained by Boughton agt. Otis, 29 Barb. R., 196; affirmed 21 N. Y. R., 261; The Shaler and Hall Quarry Co. agt. Bliss, 10 Abb. R., 311; Young agt. New York & Long Island Co., id., 229; Garrison agt. Howe, 17 N. Y. R., 458; Tracey agt. Yates, 18 Barb. R., Squires agt. Brown. The case of Moss agt. Oakley (2 Hill R., 265,) is not in conflict with these views. There the stockholders of a corporation were made liable for the debts of the company, and the moment a debt was contracted the liability attached, and of course it attached to those who were then stockholders. Here the liability attached to the trustees when and not until the default to make and publish the annual statement occurred. The reasoning of Moss agt. Oakley would make the liability attach to those who were then trustees, and so that case supports the views already expressed. It was argued that it was proper to reject evidence that Brown had resigned, because it was not also offered to prove that his resignation was accepted. We think there is no foundation for this suggestion. The resignation spoken of in the statute requires no acceptance. It is a surrender of the office, a voluntary yielding of its possession, and is consummated by the act of the resigning trustee, declaring to the company his resignation and his vacation of the office, by whatever form expressed. Whether the resignation was recorded in the minutes or not, could not affect the power of Brown to resign, or the effect of such resignation to relieve him from further duty as trustee. So that proving it by the record would not necessarily be the only mode of establishing the fact. Besides, the proof was rejected, not because it was offered to be proved by parol, but "the court refused to admit evidence of such facts unless it was shown that such resignation took place before the plaintiff's debt was contracted, and that the plaintiff knew it." And again: the witness who was under examination, had the minutes in his hands, and it does not appear by the case that it was not by those minutes (proved by the witness,) that the proposed fact might have been established. There was, therefore, error in rejecting proof that the |