Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/785

 CHAP. XIV.] OFFICERS AND CREDITORS. [§ 770. dence of his acceptance of the office. 1 And this liability does not arise if a report be filed, although the same is in some respects untrue. 2 § 770. To relieve trustees from their duty to file annual re- ports a technical dissolution of the corporation is not requisite. This duty is at an end when the corporation is practically aban- doned and has ceased to carry on business ; or when its affairs have passed into the hands of a receiver or an assignee in bank- ruptcy. 3 The action against the trustee must be brought on the original claim of the creditor ; and not on a judgment ob- tained against the corporation, as the latter is not even prima facie evidence to charge the trustees with a debt. 4 The decla- rations, however, of an officer, relating to matters in which he was competently acting for the corporation, are admissible as evidence against a trustee in an action brought to charge the latter with a debt of the corporation, there having been a fail- ure to file the annual report. 5 And in such an action the trus- tees cannot avail themselves of a defence not personal to themselves, but going to the foundation of the claim against the corporation ; unless the corporation itself could have suc- cessfully relied on the same defence. 6 The statute of limita- tions begins to run in favor of the trustees from the time when the cause of action accrued against them, L e., from the time tion of their term the trustees passed a resolution discontinuing business. If, however, a trustee holds over, and there is a debt contracted while he is a trustee de facto, he is liable for a default. Doming v. Puleston, 55 N. Y. 655. 1 Cameron v. Seaman, 69 N. Y. 396; Osborn & Cheese man Co. v. Croome, 14 Hun, 164; S. C, aff'd 77 N. Y. 629. 2 Bonnell v. Griswold, 80 N. Y. 128. Liability for signing false re- ports is provided for in New York by § 31, ch. 688, laws of 1892. See §774. 8 Kirklandr. Kille, 99 N. Y. 390; Losee v. Bollard, 79 N. Y. 404; Huguenot Nat. Bank v. Stud well, 74 N. Y. 621; Bonnell v. Griswold, 80 N. Y. 128; Bruce v. Piatt, ib. 379. But compare Sanborn w. Lefferts, 58 N. Y. 179; Gans v. Switzer, 9 Mon. 408. Esmond ». Bullard, 16 Hun, 65; Chase v. Curtis, 113 U. S. 452. Com- pare Bassett v. St. Alban's Hotel Co., 47 Vt. 313. Contra, Thayer v. New England Lithographic Co., 108 Mass. 523. 6 Hoag v. Lamont, 60 N. Y. 96. 6 Whitney Arms Co. v. Barlow, 63 N. Y. 62. For a case where the de- fendant trustee was allowed to deny that a corporation had ever been or- ganized, see DeWitt v. Hastings, 69 N. Y. 518. 765
 * Miller v. White, 50 N. Y. 137;