The first objection taken in this case is, to the overruling of the demurrer to the complaint.
The grounds of demurrer were: 1. That it did not appear that the directors made any assessments on the notes of defendants.
2. That it did not appear the company had sustained any losses.
3. That no demand was averred.
The complaint contains an averment that the company did, at various times, make assessments upon the notes, and required such payments.
This was sufficient to show a cause of action in this respect If the defendants required more particular information, they should have applied to the court to have the pleading amended. It is not so defective that the defendants could not understand it, or so defective as not to show that an assessment had been made. These are the only grounds of demurrer allowed by the Code in the district courts.
The alleged defect in the complaint, in not averring that the plaintiffs were a corporation, was not stated in the demurrer as a ground of demurring, and was therefore of no avail.
To the second ground — that it did not appear that losses had been sustained by the company — I need only say, that it was not necessary to aver in the complaint that such losses had been sustained.
*433The third section of the amended act of 1849 vests in the directors of the company the right of deciding what amount or portion of the note shall be paid. It provides for the payment, at such times as the directors shall deem necessary, for the honorable and prompt payment of the losses and expenses of the company.
The third ground of demurrer, that there is no demand averred, is not well taken. The complaint says, they required the defendants to pay the amount of the assessments, which they refused. This was sufficient. The' demurrer was properly overruled.
The evidence of assessment by the directors on the notes was sufficient. The witness proved, from his own knowledge, lb|vt the books produced were the books of the company, and contained the entries of the proceedings of the board, made by the secretary in his presence. It was not necessary that the secretary should be called for this purpose. Any other person possessing the same knowledge was competent to prove that fact, and as the witness testified to the identity of the books from his-own knowledge, the books were sufficiently proven to warrant their admission as evidence of the proceedings of the board of directors, and of the assessments by them on the notes in question.
The objection that there was not sufficient proof of the marriage of the defendant Mary to Paige was not taken on the trial. Nad it been then made, the defect could have been supplied by further testimonj', if necessary. It is too late to make it for the first time on appeal.
By the evidence, it. appears that an assessment of twenty per cent, was levied in April, 1852, on ail notes taken prior to July, 1851, and. in 1853, that-per cent, be laid on all notes. This is all the evidence as to the amount of the assessments. Under this evidence the plaintiffs co.uld only recover twenty per cent, and interest. A resolution laying a-per cent, assessment was a nullity.
The amount of the notes was $33.25; twenty per cent, on this-*434amount was $6.65. This was all that was legally chargeable to the defendants under the resolutions, as stated in the return. The interest would be $2.45, and the costs below, $3.50, making in all $12.60.
The judgment should be reduced to this amount, and affirmed for that sum without costs of appeal.
Judgment accordingly.