make application for a deed, as required by law, but to pay the price for the land. The appellant never had the legal title to said land, and whatever right he had was lost by abandonment.

It is contended that respondent went into possession through appellant; hence could not acquire any right by his possession. But there is nothing in that contention. The appellant himself testified that "the defendant was not in possession of this ground when he commenced this suit." He says:

"No; I never sold this ground to Tiner. I contracted to sell it at one time. This was in 1878. He never took possession of it under that contract."

After a very careful consideration of the very able and elaborate argument made by appellant's counsel and the authorities cited, I am of the opinion that the appellant had neither possession of, nor a legal nor equitable title to, the land in dispute at the time this action was brought, and therefore cannot maintain this action. The judgment of the court below is affirmed, with costs in favor of respondent.

HUSTON, C. J., took no part in the hearing or decision of this case. MORGAN, J., concurs.

(20 Colo. 417)

JONES ▼. PEARL MIN. CO. et al. (Supreme Court of Colorado. Dec. 22, 1894.) CORPORATIONS-ACTION BY STOCKHOLDER for DisSOLUTION-PLEADINGS-SUFFICIENCY-SUIT BY ADMINISTRATOR-PRESUMPTIONS.

1. A complaint which alleges that the directors of a mining company, owning a majority of its stock, have, in furtherance of a conspiracy to decrease the value of its stock and defraud plaintiff, a minority holder, been negligent in its management, reciting particulars; that they have attempted to change the situs of the corporation to a place without the state, holding meetings of stockholders there, without notice, in violation of Mills' Ann. St. 481; that, under their management, the corporation has failed to keep any office in the state, as provided in its articles, or to keep stockholders' or other books therein; and that such defendant directors have appropriated stock set aside as working capital, refusing to account therefor,-sufficiently shows a right of action in plaintiff, suing in equity for himself and other stockholders, for a dissolution of the corporation and the appointment of a receiver. 2. By Civ. Code, § 76, plaintiff is authorized to designate by fictitious names those whom he wishes to make parties defendant, but whose true names are to him unknown.

3. The objection to a complaint which prays for equitable relief that its material allegations are on information and belief can be raised by motion only.

4. Facts presumptively not within plaintiff's knowledge may be pleaded on information and belief, though he seeks equitable relief.

5. Where plaintiff is an administrator, substituted by order of court for another, who was also administrator, it will be presumed, in the absence of a showing to the contrary, that the substitution was properly made.

6. An express allegation that plaintiff, an administrator, is a stockholder in the defendant company, sufficiently alleges that such stock is held by the estate,

Error to district court, Arapahoe county. Action by James A. Jones, administrator of the estate of Isaac Cooper, deceased, who sues for himself and all others who may join, against the Pearl Mining Company and others, for the appointment of a receiver, dissolution of the corporation, and further relief by injunction. On an order sustaining a demurrer to his complaint, plaintiff brings error. Reversed.

This is an action brought by the plaintiff, who sues for himself and on behalf of all other stockholders similarly situated who may wish to join. The defendants are the Pearl Mining Company, and seven others. who are alleged to be stockholders and directors of the company. The action was originally commenced by Sarah F. Cooper, administratrix of the estate of Isaac Cooper, deceased. Afterwards, the present plaintiff, James A. Jones, was appointed administrator in lieu of Sarah F. Cooper, and duly substituted for the administratrix as plaintiff. The action was determined in the court below, upon demurrer to the amended complaint. In this complaint it is alleged that plaintiff does not know the true names of John Doe, Richard Roe, James Smith, William Brown, and Thomas Jones, defendants, and for this reason designates them by the names stated, promising to insert their true names in all proceedings as soon as ascertained. That "she is, and since December, 1887, has been, the duly appointed and acting administratrix of the estate of Isaac Cooper, deceased, and, as such, a stockholder in the said defendant company; the accurate amount of said stock she is unable to state, but, upon information and belief, alleges it to be about seventy-five thousand shares"; that the Pearl Mining Company was duly organized under the laws of the state of Colorado, in the month of February, 1882; that the principal object of the company was to purchase from Isaac Cooper, since deceased, certain mining property, and operate and develop the same, and to do a general mining business, the stock of the company being fixed at $5,000,000, divided into 500,000 shares. It is further alleged that the articles of incorporation provide that the company's principal office should be in Aspen, Colo., and the principal business be carried on in Pitkin and Gunnison counties; that the directors were duly authorized to make by-laws not inconsistent with the laws of the state. After the organization of said company, it is alleged that it acquired title to a large number of mining claims, principally secured from Isaac Cooper, one of the incorporators; that said Cooper took stock in the company for such interests; that the entire capital stock of the company was issued; that the mines belonging to the company are located in a rich silver-mining district; and that they present unusual inducements for exploration, development, etc., and are of great prospective value, and, if the same had been properly managed and developed, would long since

The directors are shown to have been guilty of negligence in the management of the corporate business, of frauds upon the company, and of acts ultra vires. Without any statutory authority therefor, and in direct violation of the law, they have attempted to change the situs of the corporation from the state of Colorado to the state of Pennsylvania. Meetings of the stockholders have been called and held in the city of Philadelphia, in the state of Pennsylvania. The holding of such meetings beyond the limits of the state of Colorado was unauthorized, and the proceedings thereat were voidable, if not absolutely void. Spell. Priv. Corp. 383; Miller v. Ewer, 27 Me. 509; Smith v. Mining Co., 64 Md. 85, 20 Atl. 1032; Reichwald v. Hotel Co., 106 Ill. 439; Camp v. Byrne, 41 Mo. 525. The statute provides (Mills' Ann. St. § 481) that notice of the annual meeting of stockholders for the election of directors shall be published not less than 10 days previous thereto, "in the newspaper printed nearest to the place where the operations of said company shall be carried on." This plain provision of law has been violated, and directors have been elected, including the present defendants, without notice, and at a place at which a stockholders' meeting cannot be legally held. A stockholder, although in the minority, at least has the right to the statutory notice, and to insist that meetings shall be held within the state, in order that he may attend and present his views in regard to the corporate management, although such views may not be shared by a majority of the stockholders. Perchance, by protest and argument, he may persuade the majority to change their course of conduct. Among other violations of the laws of this state charged against this company is that it has failed to keep its principal or any office at the town of Aspen, or elsewhere in this state, as provided in its articles of incorporation; that it has kept no stockholders' or other books in the state of Colorado. It is further shown that the directors have appropriated to their own use 100,000 shares of stock of the company, these being the property of the corporation set aside as its working capital, to raise funds to develop its mines, and that the directors absolutely refuse to account for this stock or the proceeds thereof. Other acts of negligence and fraud in the corporate management are alleged against the defendants, but the foregoing are sufficient to show a right of action in the plaintiff, suing as he does, for himself, and on behalf of all other stockholders similarly situated.

Several specific objections urged in argument to the sufficiency of the pleading will, however, be noticed. Plaintiff has designated five of the seven defendants in his complaint by fictitious names, alleging as a reason for so doing that the real names of the parties are unknown to plaintiff. Plain

tiff further alleges that the true names of said parties could not be obtained at the time, for the reason that all books and papers of said company were in Philadelphia, Pa., and not accessible to plaintiff, and offers to substitute the true names of the directors so designated as soon as he obtains the necessary information to enable him to do so. This manner of designating defendants whose true names are not known to the plaintiff is expressly authorized by section 76 of the Civil Code of 1887.

Certain allegations of the complaint are made upon information and belief, and defendants claim that, for this reason, the demurrer was properly sustained. This objection is not a ground of demurrer; it can be raised by motion only. Pom. Rem. & Rem. Rights, § 548. Moreover, as the facts alleged upon information and belief are not presumptively within the knowledge of the plaintiff, he is at liberty to plead them in the form adopted. Carpenter v. Smith, 20 Colo. 36 Pac. 789; Thackara v. Reid, 1 Utah,

238.

It is claimed that the capacity in which the plaintiff sues is not sufficiently alleged in the complaint. We do not think this objection is well taken, it being averred that Sarah F. Cooper was the duly appointed and acting administratrix, and it appearing from the record that James A. Jones was afterwards duly substituted by an order of court for said Sarah F. Cooper. In the absence of a showing to the contrary, we must assume that this order of substitution was properly made.

Another objection is that it is nowhere positively alleged that any of the stock belonged to the estate of Isaac Cooper. This claim is not borne out by the record, it being expressly alleged that plaintiff is a stockholder in the company.

The prayer is for an injunction and appointment of a receiver, and for general relief. Under this prayer the court may award the plaintiff any relief to which the facts may show that he is entitled, and it is unnecessary to consider at this time the particular relief that should be granted in case plaintiff succeeds in finally maintaining the action. The judgment of the district court is reversed, and the cause remanded. Reversed

(20 Colo. 424)

RUPERT et al. v. PEOPLE. (Supreme Court of Colorado. Dec. 22, 1894.) BAIL BOND-VALIDITY-LIABILITY OF SURETIES.

Gen. St. 1883, § 981 (Mills' Ann. St. § 1487). provides that, where any person shall be committed to jail on a criminal charge for want of bail, any judge or any two justices of the peace may take such bail and discharge the prisoner. Held, that a bail bond taken and approved by a sheriff having the custody of a prisoner is void, and the sureties thereon are not liable. Elliott, J., dissenting.

Error to Baca county court.

Action by the people of the state of Colorado against H. J. Rupert and others, on a criminal recognizance. There was a judgment for plaintiffs, and defendants bring error. Reversed.

This is an action brought upon a criminal recognizance in the name of the people against the plaintiffs in error. So much of the complaint as is necessary to a proper understanding of the question presented for our consideration upon this review is as follows: "That on the 24th day of January, A. D. 1891, one Henry J. Rupert was examined before S. W. Cole, Esq., a justice of the peace within and for the county of Baca and state aforesaid, upon a charge of grand larceny; * * and upon said day the said charge was inquired into by and before the said S. W. Cole, who did then and there, sitting as a justice of the peace as aforesaid, for the trial of said charge, order and require the said Henry J. Rupert to give bail, with good and sufficient surety, in the sum of two hundred dollars for his appearance at the next term of the district court in and for Baca county, conditioned according to law; and the said Henry J. Rupert, failing to give such bail as required, in default thereof was duly committed to the jail of said county by the commitment issued by the said justice, to be there confined until the said bail should be by him given, or he be discharged according to law. That afterwards, to wit, on the 31st day of January, A. D. 1891, while the said Henry J. Rupert was confined in default of bail as aforesaid, the defendants above named, R. W. Devinney, Charles M. Gordon, and John II. Rupert, for the purpose of securing the discharge of the said Henry J. Rupert from the said jail, as sureties of and with the said Henry J. Rupert, signed, executed, and entered into a recognizance for the sum of two hundred dollars, as required by the said S. W. Cole, justice of the peace. * The conditions of said recognizance were and are such that if the said Henry J. Rupert shall personally be and appear at the district court of the Third judicial district of the state of Colorado, sitting in and for said county of Baca, on the first day of the next term thereof, and from day to day thereafter, and remain at and abide the order of the said court, and not depart the court without leave, then and there to answer to the said charge of grand larceny, *** then, and in that case, the said recognizance to become void; otherwise to be and remain in full force and effect.

And the said recognizance was duly signed by said sureties. * *And the said bond was indorsed as follows, 'Approved by me, January 31, 1891. [Signed] R. C. Winecup, Sheriff of Baca County.' That after the execution, approval, and delivery of said bond or recognizance to the said sheriff, who then had and held the said Henry J. Rupert in custody under and by virtue of the commitment issued and delivered to him by the

said S. W. Cole, justice of the peace, released him, the said Henry J. Rupert, from custody, and returned the recognizance to the clerk of the district court, in whose custody it now is. * 2 That afterwards, on the 4th day of June, A. D. 1891, on the second day of said term of said district court, the said Henry J. Rupert * failed and neglect

ed to come into court," etc.,-and thereupon the said recognizance was declared forfeited. The plaintiffs in error, R. W. Devinney and Charles M. Gordon, appeared and demurred to the complaint upon the grounds that it does not state facts sufficient to constitute a cause of action; and, second, there is a defect of parties plaintiff. This demurrer was overruled, and, they electing to stand upon their demurrer, judgment was rendered against them for $200, the penalty of the bond and costs. To reverse this judgment they prosecute this writ of error.

A. F. Hollenbeck, for plaintiffs in error.

GODDARD, J. (after stating the facts). It appears upon the face of the complaint that the recognizance upon which the right of action is predicated was approved by the sheriff in a case where the prisoner was committed to the county jail in default of bail. Under these circumstances, the sheriff has no authority to approve a bond and release a prisoner from custody. In such case, the power to let to bail is expressly conferred upon a judge or two justices of the peace by section 981, Gen. St. 1883 (Mills' Ann. St. § 1487), which enacts: "Where any person shall be committed to jail on a criminal charge for want of good and sufficient bail, except for murder or other offense punishable with death, or for not entering into a recognizance to appear and testify, any judge or any two justices of the peace may take such bail or recognizance in vacancy, and may discharge such prisoner from his or her impris onment." The recognizance, therefore, having been taken and approved by an officer without authority, is void, both as a statutory bond and as a common-law obligation. People v. Mellor, 2 Colo. 705; Haney v. People, 12 Colo. 345, 21 Pac. 39; State v. Winninger, 81 Ind. 51; State v. Russell, 24 Tex. 506; State v. Kruise, 32 N. J. Law, 313; State v. Young, 56 Me. 219; Dickenson v. State, 20 Neb. 72, 29 N. W. 184; Harris v. Simpson, 4 Litt. (Ky.) 165; Powell v. State, 15 Ohio, 579; Williams v. Shelby, 2 Or. 144. As was said in the case of Haney v. People, supra: "Without discussion, and without analysis of the authorities, we shall assume that if, in a case like the one at bar, bail be taken by a court having no jurisdiction, or by an officer destitute of legal authority, the instrument, whether denominated a 'recognizance' or 'bond,' is void as to both principal and surety, and that such fact, when shown by the surety, constitutes a good defense to an action against him for

the penalty." The only cases that we have been able to find, that hold a recognizance so approved good as a common-law obligation even, are State v. Cannon, 34 Iowa, 325, and Dennard v. State, 2 Ga. 137. Judge Freeman, in his note to the case of Harris v. Simpson, supra, in speaking of these cases, says: "The soundness of this doctrine is very questionable. Since the magistrate had no jurisdiction to admit to bail in such a case, the sheriff had no right to release his prisoner upon a bond so taken, and if he did so it was an escape; and, since there is no distinction between voluntary and negligent escapes in criminal matters, it was the sheriff's duty immediately to retake the accused. Surely, a breach of duty on the part of the sheriff could not furnish a valid consideration for a bail bond. It would certainly be contrary to the policy of the law to enforce an obligation founded upon such a consideration." And as was said in Dickenson v. State, supra: "To hold that an unauthorized person may accept a recognizance running-to the state, which will bind the person entering into it, is to hold that one private unauthorized person may make another the debtor of the state, a proposition illogical in theory and dangerous in practice." It is clear, upon reason and authority, that the recognizance upon which this action is brought was void, and is not enforceable against the plaintiffs in error; and, its invalidity appearing upon the face of the complaint, the court below erred in overruling the demurrer and entering the judgment complained of. This conclusion being decisive of the case, we need not notice the further objection to the right of defendants in error to bring the action. For the foregoing reasons the judgment is reversed. Reversed.

ELLIOTT, J. (dissenting). The “loop holes of the law," by which persons charged with crime evade trial, or escape punishment after fair trial and conviction, are a reproach to the jurisprudence of many American states. Not many miscarriages of justice have occurred in Colorado, and these have been occasioned by improvident legislation as well as by a few hasty judicial decisions. A person accused of crime is entitled to the benefit of every reasonable doubt as to every question of law or fact bearing upon the question of his guilt or innocence. As was well said by Chief Justice Hayt in Graves v. People, 18 Colo. 174, 32 Pac. 63: "The innocence of every accused person must be presumed until his guilt is established according to the law of the land and beyond all reasonable doubt. The rules governing the trial of criminal cases are the outgrowth of experience, and embody the wisdom of centuries. A conviction, obtained in cases where a substantial compliance with these rules has not been had, cannot be allowed to stand." But this humane rule in favor of life and liberty should not be extended to preliminary proceedings so as to prevent a

fair trial, nor to subsequent proceedings so as to prevent punishment in case of conviction after a fair trial. Society has rights and interests in the administration of the criminal law as well as the accused. It is urged that the law in respect to sureties is stricti juris. This is true to the extent that the surety is not to be held liable beyond the terms of his obligation; but there is no reason for holding the rule more stringent, in respect to recognizances and bail bonds, in criminal proceedings than in case of other bonds and undertakings. Neither the execution nor enforcement of an appearance bond can have any bearing upon the question of the guilt or innocence of the accused. It is not an unfair rule of interpretation which holds parties liable upon a contract to which they have voluntarily given their assent, upon a valid consideration, and for a lawful purpose, according to the true intent and meaning of the contract, and according to their own understanding of its conditions.

Let these familiar principles be applied to the present case. From the record it appears that the accused was in custody under lawful process, upon a charge of grand larceny. Being thus in custody, he, with plaintiffs in error as sureties, for the purpose of securing his release, voluntarily entered into the bond or recognizance fixed by lawful authority, and delivered the same to the sheriff for a lawful purpose, in good faith; and thereupon the accused was released, but he failed to appear according to the terms of his bond, and the same was declared forfeited. Suit being brought upon the forfeited recognizance, the court below rendered judgment against the sureties. The foregoing facts being confessed by demurrer, was it error for the county court thus to render judgment? Counsel for plaintiffs in error contends as follows: "An alleged bond or recognizance, taken or entered into before a court or an officer not having authority to take such bond, is an absolute nullity, and no action can be maintained on such alleged bond or recognizance." In support of this proposition, decisions are cited from several different states; among others, two opinions by this court. People v. Mellor, 2 Colo. 705; Haney v. People, 12 Colo. 345, 21 Pac. 39. The Mellor Case was a proceeding by scire facias upon a recognizance of bail, or appearance bond, entered into before justices of the peace. The defendant pleaded: First, nul tiel record; second, that the bail bond was void, in that the affidavit upon which the accused was arrested did not properly charge the crime of burglary, that being the charge upon which the accused was held to bail; third, that there was no such recognizance remaining of record as was mentioned in the scire facias, in that the justices who took the recognizances did not certify the same to the district court, as the statute requires. The second plea was demurred to, and the transcript shows that the demurrer was overruled, and that, plaintiffs in error electing to abide by