reasonable lookout and to exercise reason-him from looking for the car or to excuse able care to discover the approach of him for not doing so. The instruction, vehicles towards the car track at such when viewed in the light of the uncontroplaces as said vehicles had the right to verted facts, therefore, was in conformity cross, and to take reasonable and timely pre- with the law as announced by this court in caution to prevent striking or colliding with Little Rock R. & Electric Co. v. Sledge, 108 same. These instructions, when considered Ark. 95–110, 158 S. W. 1096. Moreover, the together, as they should be, could not pos- instruction could not have been prejudicial sibly have misled the jury. in the particulars urged by the appellant, Instructions should not be considered as because the appellant himself testified that in conflict where they can be harmonized, he was looking at the car; that he could see and instruction No. 13, given at the instance the motorman, and the motorman could see of the appellant, should be taken as not in him; that he was looking at the motorman conflict, but as supplementary to and ex- for some distance before the wagon was planatory of, what is meant in instruction struck, and continued to look at the car No. 5, by the use of the words "ordinary before it struck his wagon; that part of care in the management of his car," etc. the instruction which told the jury that, if But if the words "ordinary care in the man- plaintiff saw the approaching car and drove agement of his car" did not include the duty in front of it, then the motorman was only upon the part of the motorman to keep a required to use such care to prevent the inlookout for persons and property on the jury as a person of ordinary prudence would track, then it was a defect in the verbiage, have exercised under like circumstances, in which should have been reached by a specific effect told the jury that, if appellant was objection. See St. Louis, I. M. & S. R. Co. guilty of contributory negligence, then the v. Barnett, 65 Ark. 255, 45 S. W. 550, 4 Am. motorman was only required to use ordinary Neg. Rep. 115; Pettus v. Kerr, 87 Ark. 396, care and prudence, after discovering his 112 S. W. 886; St. Louis, I. M. & S. R. Co. peril, to avoid injuring him. This is a corv. Carter, 93 Ark. 589, 126 S. W. 99; Mis-rect statement of the law applicable to the souri & N. A. R. Co. v. Duncan, 104 Ark. 409, 148 S. W. 647. Instruction No. 6, given at the instance of appellee, of which appellant complains, is as follows: "The court instructs you that it was the duty of plaintiff before going on or attempting to cross the tracks of defendant company, to look and listen for approaching cars, and if you believe from the evidence that plaintiff failed to do so, or if you believe that plaintiff saw or could have seen the approaching car, and drove or permitted his horse to go upon the track in front of said car, then you should find for the defendant, unless you further find from the evidence that defendant's motorman, after he saw plaintiff in a perilous position, failed to use such care and caution in stopping said car as a person of ordinary care and prudence would have exercised under like circumstances." The appellant contends that the instruction was erroneous in telling the jury that it was the duty of plaintiff, before going on or attempting to cross the track of defendant, to look and listen for approaching cars, and further erroneous in telling the jury that if plaintiff saw or could have seen the approaching car, and drove or permitted his horse to go upon the track in front of said car, etc. The undisputed facts show that the appellant's view of appellee's approaching car was unobstructed. There were no circumstances developed by the proof to prevent facts. Instruction No. 8 was as follows: "It was the duty of plaintiff to keep a lookout for cars before going upon defendant's track immediately in front of its moving car, and, if you believe from the evidence that plaintiff failed to keep such lookout for defendant's cars and went upon defendant's track in front of an approaching car, then the court instructs you that the defendant would not be liable in this action, although you might believe that its motorman carelessly failed to discover plaintiff's peril in time to have avoided a collision. If plaintiff was guilty of negligence in going upon defendant's track, then defendant's servant was only required to exercise ordinary care for plaintiff's safety after actually discovering him in a place of danger." The above instruction, like instruction No. 6, preceding it, correctly declared the law relating to the liability of street railway companies, in cases where the evidence proves or tends to prove that the plaintiff is guilty of contributory negligence. In all such cases street railway companies are liable only where their servants in charge of the car fail to exercise ordinary care to prevent injury after the plaintiff's perilous position has been discovered. Johnson v. Stewart, 62 Ark. 164, 34 S. W. 889; Hot Springs Street R. Co. v. Johnson, 64 Ark. 421, 42 S. W. 833, 3 Am. Neg. Rep. 323. See also Hot Springs Street R. Co. v. Hildreth, 72 Ark. 572, 82 S. W. 245. The court did not, in instruction 8, tell the jury that ap- | him to show, that the motorman did not pellant was guilty of contributory negligence as matter of law; it submitted the issue to the jury. The lookout statute of May 26, 1911 (Laws 1911, p. 275), amending § 6607 of Kirby's Digest, as construed by this court in Central R. Co. v. Lindley, 105 Ark. 294, 151 S. W. 246, and St. Louis, I. M. & S. R. Co. v. Gibson, 107 Ark. 431, 155 S. W. 510, and other cases, has no application to street railways. The same may be said of instruction No. 14. The objection that this instruction as sumes as a fact that "plaintiff got into his cart and made no effort to avoid a collision" is not well taken. The instruction is hypothetical, and states, "if you find from the evidence," etc., "that the plaintiff got into the cart." The criticism of instruction No. 11, in regard to the burden of proof, and which told the jury that if the testimony is equally balanced on a certain point, leaving their minds in doubt, their verdict should be for the defendant, etc., is not obnoxious to the criticism that appellant makes of it; but, taken as a whole, it, in effect, tells the jury that the plaintiff must establish the material allegations of his complaint by a preponderance of the evidence. Appellant complains that the court erred in refusing to grant certain prayers for instructions in regard to expert testimony, but the court had already given, at appellant's request, an instruction which contained all the law that appellant was entitled to on that subject. We are convinced that the instructions, as a whole, fairly and correctly submitted the issues to the jury. III. The appellant contends that the court erred in refusing to permit him to prove by certain witnesses the distance in which a car going at the speed fixed by appellee's witnesses could be stopped, and that such stop could be made in a distance of from 4 to 6 feet. Appellant offered this testimony in rebuttal. Under the issues raised by the pleadings, the testimony was competent and proper to be introduced by the appellant in chief. The appellant had alleged that the car was being run at a dangerous and high rate of speed, was not supplied with proper power brakes by which it could be properly and quickly stopped, and that if the motorman had properly applied the brakes as he should have done the appellant would not have been run down and injured. The answer denied these allegations. To sustain these allegations of negligence it was competent for the appellant to prove, and the burden was upon Ap make a good stop. The offered testimony would have tended to show that appellee's motorman did not make a good stop. pellant went partly into the proof on this subject, and, in fairness to the appellee, he should have discovered all that he then had to produce. "When the burden of proving any matter is thrown upon a party by the pleadings, he must generally introduce, in the first instance, all the evidence upon which he relies; and he cannot, after going into part of his case, reserve the residue of his evidence for a subsequent opportunity." Jones Ev. § 809. "Rebuttal testimony should rebut the testimony advanced by the other side, and should consist of nothing which might properly have been advanced as proof in chief." 2 Elliott, Ev. §§ 947, 948. While the court, in its discretion, might have permitted the evidence to be introduced at the time it was offered, yet, since it was not rebuttal evidence, and no showing is made as to why it was not brought forward in chief, nothing to indicate that appellant was not in possession of the evidence at the time he was developing his case in chief, nothing to show that it had been discovered only after appellee had brought forward its testimony, the court did not abuse its discretion in rejecting it. It was within the discretion of the court to do so, and there was no error in its ruling. 2 Elliott, Ev. § 948, and cases cited in note 20; Underhill, Ev. p. 551. The record, upon the whole, is free from prejudicial error, and the judgment is therefore affirmed. ness, 1040. (e) Debts due a director, 1040. (f) Debts due a stockholder, 1041. (g) Advances made by factors, 1041. (h) Certificates of deposit, 1042. (i) Torts, 1042. 3. Evidence as to debts, 1043. d. Effect of waste or destruction of assets by assignee, 1043. e. Effect of reduction of debts, 1043. VII. To whom liability extends. b. To what creditors. 2. Doctrine that liability ex- VIII. Enforcement of the liability. a. Who may enforce, 1046. b. Where liability may be enforced, 1047. c. When liability may be enforced, 1048. the Superior Court for Providence and XCEPTIONS by plaintiff to rulings of Bristol Counties made during the trial of an action to enforce the statutory liability of a director in the Pawtucket Steam & Gas Pipe Company, which resulted in a verdict in defendant's favor. Sustained in part. The facts are stated in the opinion. Messrs. Henry E. Tiepke, Henry M. Boss, Jr., and Louis W. Dunn, for plaintiff: Defendant is liable notwithstanding payments by the trustee in bankruptcy reduced the debts below the statutory limit. Merchants' Bank v. Stevenson, 10 Gray, 232; Re O'Connor, 21 R. I. 465, 79 Am. St. Rep. 814, 44 Atl. 591; Sayles v. Bates, 15 R. I. 342, 5 Atl. 497; Flint v. Boston Woven IX. Applicability of statute of limitations. a. In general, 1050. b. When statute begins to run, 1051. X. Effect of expiration of corporate life, 1052. 1. Introductory. As indicated in the title, the liability of directors under statutes which simply limit the indebtedness of the corporation without expressly making them liable in case this indebtedness is exceeded is not discussed. In this connection it has been held that where the statute limits the indebtedness, but does not make the directors liable for debts contracted in excess of the limit, they are not liable, there being no such liability at common law. Frost Mfg. Co. v. Foster, 76 Iowa, 535, 41 N. W. 212. It has been stated that the liability is of purely statutory origin. Manns Mercantile Co. v. Smith, Miss., 64 So. 929. See in this connection the Kentucky cases discussed in II. infra. The liability is limited to the amount of excess. This is assumed in the cases. It was expressly admitted in White v. How, 3 McLean, 111, Fed. Cas. No. 17,548. That such a liability continues after the death of the directors against their property in the hands of an executor or administrator is apparently provided by statute in Massachusetts. Hudson v. J. B. Parker Mach. Co. 173 Mass. 242, 53 N. E. 867. See McComb v. Kellogg, 16 N. Y. S. R. 16, 1 N. Y. Supp. 206, infra, IV. a, in this connection. The statute does not apply in case of an association exercising corporate powers without legal authority, but applies only in case of de jure corporations. Gay v. Kohlsaat, 223 Ill. 260, 79 N. E. 77. Such statutes may be abrogated or repealed by other statutes extending the power of the corporation to create debts. Thus, a statute fixing the maximum limit of corporate indebtedness at one half the capital stock paid in, and making the directors liable for any excess of debts and Hose & Rubber Co. 183 Mass. 114, 66 N. E. 592; Merchants' Bank v. Stevenson, 5 Allen, 398; Leighton v. Campbell, 17 R. I. 51, 9 L.R.A. 187, 20 Atl. 14. Nassau Bank v. Brown, 30 N. J. Eq. 478; Continental Nat. Bank v. Buford, 107 Fed. 188; Merchants' Bank v. Stevenson, 5 Allen, 398; Chambers v. Lewis, 28 N. Y. 454; In accordance with the Leighton Case, Whitney v. Cammann, 137 N. Y. 342, 33 N. supra. Margarge & Green Co. v. Ziegler, 9 Pa. Super. Ct. 438; Frank P. Miller Paper Co. v. York Coated Paper Co. 34 Pa. Super. Ct. 315. Messrs. William A. Spicer, Jr., Frank H. Swan, and Edwards & Angell, for defendant: A party who seeks to enforce the liability of corporate officers under a statute must allege and prove affirmatively every fact, default, or contingency upon which his right to recover depends. liabilities above this limit, is repealed as to a corporation which is authorized by the legislature of the state to issue its bonds and notes to such an amount as, in addition to means derived from its stock, should be necessary and sufficient for the construction and equipment of its road. Niagara Bridge Works v. Jose, 59 N. H. 81. So, a statute providing that the capital stock or indebtedness, or both, of any corporation created by general or special law, may, with the consent of the persons or bodies corporate holding the larger amount of the value of its stock, be increased to such an amount in the aggregate of each as it shall be necessary to accomplish and carry on and enlarge the business and purposes of the corporation, repeals an existing statute limiting the amount of indebtedness of the corporation, and making the directors liable for any excess over this limit. Miller v. York Coated Paper Co. 39 Pa. Super. Ct. 538. The statute governing the liability of directors was held repealed in Rice v. Kennedy, 76 Vt. 380, 57 Atl. 971; therefore the directors who had assented to an excess of indebtedness were held not liable. II. Forms of statute. There are two general forms of statutory provisions governing this question. First: There is the form which provides in substance that in case of an excess of debts over a stated limit, the directors shall be liable therefor. Second: Another form prohibits the contracting of debts above a stated limit, and then provides that in case of excess the directors shall be liable therefor. The variations of the statutes in other respects are numerous. The limit of debts is variously fixed at "50 per cent of the capital stock," "the paid-in capital stock," "the subscribed capital stock," "the solvent stock," and in some instances several times the capital stock. Again, the statutes vary in making the directors liable generally; in making them liable generally, but providing that dis E. 305; Anfenger v. Anzeiger Pub. Co. 9 Colo. 377, 12 Pac. 400; 15 Enc. Pl. & Pr. 76; 2 Thomp. Corp. §§ 1346, 1798. "After the payment of the last instalment" means after payment of the entire capital (fixed or increased). Austin v. Berlin, 13 Colo. 198, 22 Pac. 433; Clow v. Brown, 150 Ind. 185, 48 N. E. 1034, 49 N. E. 1057; Leighton v. Campbell, 17 R. I. 51, 9 L.R.A. 187, 20 Atl. 14; Providence Steam-Engine Co. v. Hubbard, 101 U. S. 188, 25 L. ed. 786; 10 Cyc. 853; Merchants' Bank v. Stevenson, 5 Allen, 398. senting directors may be relieved of this liability. Others impose a liability only upon assenting directors, or upon directors who contracted the debt, or upon directors who consented to the indebtedness, or directors under whose administration the excess happened. The liability is usually to the creditors of the corporation, but it has been fixed in favor of the corporation itself, and to the creditors in case of dissolution. Many other variations in the statutes will be noticed in the discussion, infra. Many of the questions which arise within the scope of the present note are answered by the statute governing the case. In fact, a decision is valuable only in so far as the statute construed is similar to the one gov erning the case in which the user may be interested. Consequently, any examination of the question here annotated should begin with an examination of the statute governing the case in which the user may be interested. No attempt has been made in the note to set out all statutes governing the question, but only those discussed by the courts. There are doubtless many statutes that have never been construed by the courts, and it is doubtless a fact that many of the decisions have been rendered inapplicable even in the jurisdiction in which rendered by changes in the statute. The necessity for first examining the statute thus appears. Certain forms of statutes do not expressly make the directors liable for incurring an excess indebtedness, but, after limiting the indebtedness, provide that the directors are liable for any intentional fraud for failing or refusing to comply substantially with the articles of incorporation. Under such a statute it was held in Stafford v. Cain, 13 Ky. L. Rep. 639, that directors who knowingly incurred an indebtedness in excess of the prescribed limit were guilty of an intentional fraud within the meaning of the statute, and a creditor whose debt was created with the knowledge on the part of the directors that the indebtedness had already reached the limit prescribed, and who failed to make his debt out of the corporate The statute terminates directors' liability for a debt contracted while the indebtedness exceeds the paid-in capital, upon the reduction of such indebtedness to the amount of said capital. 183 Mass. 114, 66 N. E. 592; Merchants' Bank v. Stevenson, 10 Gray, 235; 2 Thomp. Corp. § 1346; Leighton v. Campbell, 17 R. I. 53, 9 L.R.A. 187, 20 Atl. 14. Parkhurst, J., delivered the opinion of the court: This is an action on the case, brought by the plaintiff, a creditor of the Pawtucket Steam & Gas Pipe Company, a Rhode Island corporation created by special act of the general assembly, to enforce certain statu Flint v. Boston Woven Hose & Rubber Co. 183 Mass. 114, 66 N. E. 592; Slater v. Taylor, 146 Ill. App. 97, 241 Ill. 102, 89 N. E. 271; Leighton v. Campbell, 17 R. I. 51, 9 L.R.A. 187, 20 Atl. 14; Tradesman Pub. Co. v. Knoxville Car Wheel Co. 95 Tenn. 634, 31 L.R.A. 593, 49 Am. St. Rep. 943, 32 S. W. 1097; Moore v. Lent, 81 Cal. 502, 22|tory liabilities alleged to have been incurred Pac. 875; Merchants' Bank v. Stevenson, 10 by the defendant as a director of said comGray, 232. pany, under the provisions of Pub. Stat. R. Dividends in bankruptcy are a reduction I. 1882, chap. 155, later re-enacted as Gen. within the statute. Laws (R. I.) 1896, chap. 180. Flint v. Boston Woven Hose & Rubber Co. property, could recover from the directors, | and it was held no protection to them that they believed that the debt would be paid. Approved in Gunther v. Baskett Coal Co. 107 Ky. 44, 52 S. W. 931. Nor does the fact that the existing indebtedness is secured by mortgage, and is therefore of record, charge the creditor with notice that the indebtedness had already exceeded the limit prescribed by the articles of incorporation. Stafford v. Cain, supra. Under this statute directors who turn the management of the corporation over to a managing officer who runs the business without the knowledge or control of the directors concerning the creation of liabilities in excess of a charter limit, and who, upon their attention being called to the fact that an excess indebtedness had been incurred, ratified the same by giving a note therefor, are liable under such statute. Randolph v. Ballard County Bank, 142 Ky. 145, 134 S. W. 165. That they must be directors at the time the debt was incurred, under the Kentucky form of statute, is held in Gunther v. Baskett Coal Co. supra. III. General rules of construction. A rule sustained by the practically uniform current of authorities is that such statutes as are the subject of this note are to be strictly construed. Woolverton V. Taylor, 132 Ill. 197, 22 Am. St. Rep. 521, 23 N. E. 1007; Lewis v. Montgomery, 145 Ill. 30, 33 N. E. 880; Slater v. Taylor, 241 Ill. 102, 89 N. E. 271; Walker v. Birchard, 82 Iowa, 388, 48 N. W. 71. It has been stated that, at least, the liability of the directors should clearly appear. Moore v. Lent, 81 Cal. 502, 22 Pac. 875. Every intendment and presumption is in favor of the director, who is to be held liable only on full and strict proof of all the facts by the statute made essential to create the liability. Irvine v. McKeon, 23 Cal. 472. The rule of strict construction is applied to such statutes by some courts for the rea The declaration contains three counts, but son that the statutes are regarded as creating a forfeiture or imposing a penalty. Ibid.; Schofield v. Henderson, 67 Ind. 258; Merchants' Bank v. Stevenson, 7 Allen, 489; Manns Mercantile Co. v. Smith, Miss. 64 So. 929; Kritzer v. Woodson, 19 Mo. 327; Morimura v. Traeger, 11 Pa. Dist. R. 378; Tradesman Pub. Co. v. Knoxville Car Wheel Co. 95 Tenn. 634, 31 L.R.A. 593, 49 Am. St. Rep. 943, 32 S. W. 1097. Any general characterization of such statutes as penal, however, at once meets with contradictions in the decisions. That such a statute imposes a penalty was denied in Neal v. Moultrie, 12 Ga. 104, in determining whether the right to sue was barred by a special short term statute of limitations applicable to penalties, fines, or forfeitures. In this jurisdiction, however, it is treated as a statutory remedy which must be strictly pursued. Banks v. Darden, 18 Ga. 318. This strict construction is evidenced in Walker v. Birchard, 82 Iowa, 388, 48 N. W. 71, where, under a statute making the directors of a railroad company which has received taxes voted in aid thereof under statutory provisions, liable to the stockholders of the corporation for double the amount, estimated at its par value, of the stock held by them, for encumbering the road in excess of a stated sum, the directors were held not so liable where they encumbered the road in excess of the sum named in the statute prior to the voting of the tax. The court expressed the opinion that the directors are personally liable to stockholders only in cases where, after the company has received taxes voted in its aid, the bonds are issued by their authority in excess of the limits named in the statute, and the stock is thereby rendered of less value. The statute limited the right of the stockholders to recover to cases in which their stock was rendered of less value or lost by the incurring of the indebtedness. IV. Nature of liability. a. In general. There is very little harmony in the decisions as to the nature of the liability |