It is clear to us that the allegations of the answer before referred to show that all of the certificates of deposit subsequent to the first one issued on February 11, 1890, when the original deposit was made, were but continued evidences of that indebtedness, and in the language of the court in the case of Iron Co. v. Walker, just cited, only "extensions from date to date of the time of payment thereof." It follows from the foregoing views that plaintiff's cause of action against defendant accrued on February 11, 1894. The statute of limitations began to run in favor of defendant on that day, and its operation was not suspended by the action of the plaintiff in accepting from the Portland Savings Bank the certificate of deposit mentioned in the complaint. The time for the payment of the bank's indebtedness to plaintiff was thereby extended until the maturity of that certificate, but this does not affect the right of the defendant here to insist upon the bar of the statute. The general rule, subject to some statutory exceptions not presented by the facts of this case, is that when the statute of limitations is once put in motion nothing interrupts its running, and certainly the plaintiff could not by any agreement made between himself and the bank, after the statute once began to run in favor of defendant, deprive him of the benefit of this general rule. In discussing the effect of the statute of limitations upon actions arising under a statute charging trustees with the debts of the corporation, for failure to make reports as therein required, the court of appeals of the state of New York said, in the case of Rector, etc., of Trinity Church v. Vanderbilt, 98 N. Y. 170:

"The statute operates upon the remedy, and the omission of the creditor to pursue it cannot stop its running. The liability of the trustee was imposed by statute, and the benefit and suit therefor are limited to the creditor as the one aggrieved. In such a case, when the statute of limitations begins to run, nothing subsequent will stop it."

Our conclusion is that the circuit court did not err in denying plaintiff's motion to strike out the averments of the answer showing that the certificate sued on was not issued on account of any indebtedness incurred at its date, but in fact for the balance then due on account of the deposit made by plaintiff February 11, 1890. These facts were properly set out in the answer in support of the defendant's plea of the statute of limitations.

2. The circuit court did not err in granting defendant's motion to strike out that part of plaintiff's reply to which we have already referred. The allegation therein that plaintiff had no knowledge of the facts constituting his cause of action until on or about March 25, 1898, was immaterial. The same also may be said of the further averment that plaintiff on May 10, 1894, deposited with the Portland Savings Bank the certificate of March 22, 1893, "and that said. bank then and there received," and said plaintiff "then and there so deposited, said certificate as a new deposit, together with the sum of $718.33, and that said deposits were new deposits, * * * and that said bank then and there acknowledged in writing said deposit, and did then and there issue in writing its certificate of deposit therefor, as alleged in plaintiff's complaint.' This cannot be construed as a direct and specific reply to any of the new matter contained in the

answer upon which the defense of the statute of limitations is based. It tendered an immaterial issue as to the fact of an understanding or agreement between plaintiff and the Portland Savings Bank, to the effect that the transaction by which plaintiff surrendered to the bank the certificate of March 22, 1893, and received in exchange therefor the certificate of deposit mentioned in the complaint, was to be deemed a new deposit. But the plaintiff insists that the language just quoted should be construed as an allegation that $718.33 in money was deposited by him with the Portland Savings Bank on May 10, 1894, and that this deposit is included in the amount named in the certificate sued on, and from this it is argued that a new indebtedness in the sum of $718.33 was created by the deposit of that amount upon the day named, and that plaintiff's right to recover the same from defendant is not barred by the statute of limitations, as the cause of action therefor did not accrue until May 10, 1895, the date of the maturity of the certificate referred to. We are not able to agree with plaintiff in his construction of the above averment. It is distinctly alleged in the answer that on May 10, 1894, the balance due on the certificate of March 22, 1893, was $9,718.33, which is the exact amount named in the certificate mentioned in the complaint. The plaintiff did not attempt to deny this allegation in his reply. On the contrary, the same fact clearly appears from the reply itself. The answer further alleged that the certificate sued on was not given for any other indebtedness than the balance due on the original deposit of February 11, 1890, as evidenced by the certificate of March 22, 1893. The averment above quoted cannot be deemed a specific denial of this allegation of the answer, either in whole or in part. The issue tendered by the answer was that the certificate sued on represented only the balance due on the certificate of March 22, 1893, and it is not material that plaintiff, on May 10, 1894, deposited with the bank the sum of $718.33 in money, in addition to the said certificate, unless the amount so deposited is included in the certificate sued on, and in view of the admitted fact that the amount due on the certificate deposited by plaintiff with the Portland Savings Bank, on May 10, 1894, was $9,718.33, and that upon its deposit the bank gave to plaintiff the certificate sued on for that exact sum, we do not think the reply can be construed as distinctly alleging that the latter certificate represents an additional deposit of $718.33, made on the same day. We construe the words "said deposit" in the concluding sentence of the above-quoted averment as referring to plaintiff's deposit of the certificate of March 22, 1893, and to no other deposit. The object of the law, in requiring a reply to new matter contained in the answer, is to narrow the issues, and compel a plaintiff to admit what he cannot conscientiously deny. That portion of plaintiff's reply which was stricken out was evasive, and did not contain a direct and specific denial of the allegations of the answer.

3. The defendant's motion for judgment upon the pleadings was properly granted. Section 94, I Hill's Ann. Laws Or., provides:

"Every material allegation of the complaint, not specifically controverted by the answer, and every material allegation of new matter in the answer, not specifically controverted by the reply, shall, for the purpose of the action, be taken as true.

The facts alleged in the answer of the defendant in support of his plea of the statute of limitations were not specifically controverted by the reply, and, this being so, the defendant was entitled to judgment upon the pleadings, and he would have been so entitled even if no part of the plaintiff's reply had been stricken out.

4. We do not deem it necessary to discuss the other assignments. of error in relation to the refusal of the court to strike out that part of the answer setting out an agreement alleged to have been made by plaintiff with the Portland Savings Bank, on April 10, 1894, concerning the payment of the amount which the bank then owed on account of the deposit of February 11, 1890, and the action of the court in striking from the reply allegations in relation to this same agreement, and tending to show fraud and deceit upon the part of the defendants. The judgment does not depend upon the correctness of the rulings of the court in respect to these matters.

The judgment is right, and must be affirmed, because the plaintiff did not in his reply specifically controvert the facts alleged in the answer, showing that his cause of action is barred by the statute of limitations. Judgment affirmed.

NOTE.

Limitation of Actions against Corporate Officers.

I. STATUTORY PROVISIONS.

[a] (Ga. Sup. 1852) The limitation provided for by Act 1876, in suits for fines, forfeitures, and penalties, does not apply to an action to enforce the liability of the directors of the Commercial Bank at Macon to creditors created by the eighth rule of the bank charter for exceeding the amount of indebtedness the bank was allowed to incur.-Neal v. Moultrie, 12 Ga. 104.

[b] (Ga. Sup. 1860) Where the liability of the directors of a bank in case of their violation of its charter is statutory, the right of action is barred only after a period of 20 years.-Hargroves v. Chambers, 30 Ga. 580.

[e] (Kan. Sup. 1898) A civil action brought under Gen. St. 1897, c. 18, § 74, against bank officers for the recovery of deposits received by them when the bank was in a failing condition, is upon a "liability created by statute." and is therefore governed by Civ. Code, § 12, subd. 2, prescribing three years as the limit for bringing an action on such liability.-Frame v. Ashley, 53 Pac. 474, 59 Kan. 477, reversing judgment Ashley v. Frame (App. 1896) 45 Pac. 927, 4 Kan. App. 265.

[d] (Kan. App. 1899) A civil action, brought under Gen. St. 1897, c. 18, § 74, against bank officers, for the recovery of deposits received by them when the bank was in a failing condition, is on a "liability created by statute." within Civ. Code, § 12, subd. 2, requiring such action to be brought within three years.--Seglem v. Yeager, 56 Pac. 508, 8 Kan. App. 655.

[e] (Mass. Sup. 1819) The directors of a bank which has failed are not liable on the bills of the bank issued more than six years before the commencement of the action.-Hinsdale v. Larned, 16 Mass. 65.

[f] (N. Y. App. 1847) A suit against a stockholder of a corporation to charge him individually with a debt contracted by it, under a provision in the act of incorporation rendering the stockholders liable, is not barred by the three years' limitation provided by 2 Rev. St. p. 298, § 31, for "actions upon a statute, for a forfeiture or cause, the benefit and suit whereof is limited to the party aggrieved," the action being given partly by the common law, and partly by statute, and it is only barred by the lapse of six years.-Corning v. McCullough, 1 N. Y. 47, 3 Denio, 589, 49 Am. Dec. 287.

[g] (N. Y. App. 1880) D. in 1873 loaned money to a manufacturing corporation that omitted to file a report in January, 1875. Held, that an action com

menced in March, 1877, against the trustees, under Laws 1848, c. 40, § 12, was in time, as it is immaterial when the action accrued against the corporation, if the action could have been maintained at the time of the trustees' failure to file the report.-Duckworth v. Roach, 81 N. Y. 49.

[h] (N. Y. Sup. 1845) A suit against a stockholder to charge him individually with the debts of the corporation, pursuant to a provision in the act of incorporation, is an action on a statute the benefit whereof "is limited to the party aggrieved," within the meaning of 2 Rev. St. p. 298, § 31, providing that actions on any statute, "the benefit and suit whereof is limited to the party aggrieved," shall be brought within three years after the cause of action accrued.-Freeland v. McCullough, 1 Denio, 414, 43 Am. Dec. 685.

[i] (N. Y. Sup. 1872) Under Laws 1865, p. 992, c. 368, § 7, which provides that "the trustees of any company or corporation organized under the provisions of this act shall be jointly and severally liable for all debts due from said company or corporation, contracted while they are trustees, provided such debts are payable within one year from the time they shall have been contracted, and provided a suit for the collection of the same shall be brought within one year after the debt shall become due and payable," the trustees are rendered liable for the debts of the corporation only upon condition that a suit to enforce such liability shall be brought within one year after the debt became due and payable.-Hall v. Siegel, 7 Lans. 206, 13 Abb. Prac. (N. S.) 178.

[j] (N. Y. Sup. 1887) An action by the receiver of a corporation, to charge defendants, as trustees of the corporation, with the fraudulent diversion of the corporate property, is an equitable action, "the limitation of which is not specially prescribed," within the meaning of Code Civ. Proc. § 388, providing that such actions must be brought within 10 years.-Pierson v. Morgan, 20 Abb. N. C. 428, affirmed in (1889) 4 N. Y. Supp. 898, 17 Civ. Proc. R. 124.

[k] (N. Y. Sup. 1899) Laws 1892, c. 688, § 30, making directors of a corporation, failing to file annual reports, liable for its debts, unless within a certain time after the limitation for filing they file certificate of refusal of the other directors to file the report, does not apply where, before the time expires, the corporation ceases to exist.-Reduction Co. v. De Leon, 60 N. Y. Supp. 262, 29 Misc. Rep. 130.

[1] (N. Y. Sup. 1901) Laws 1899, c. 354, § 34, provides that a director of a stock corporation shall not be liable to a creditor of the corporation for failure to file annual report, unless within three years after such omission a creditor serves upon him written notice of intention to hold him personally liable. Held not intended to shorten the three-year statute of limitations, applicable to actions to hold a director personally liable on the failure to file such annual report, where the debt matured before such failure, but to apply only to a creditor whose debt had not accrued at the time of such failure, and who, therefore, had no existing right of action.-Railroad Co. v. Hinchcliffe, 70 N. Y. Supp. 601, 34 Misc. Rep. 624.

[m] (Pa. Sup. 1875) Six years' omission to proceed would be a bar to an action against directors for the misuse of the corporate property.-Appeal of Watts, 78 Pa. 370.

[n] (Pa. Com. Pl. 1892) Act March 28, 1867, § 1, providing that no action shall be brought against any "stockholder or director, in any corporation or association," to charge him with any claim for materials or moneys for which said corporation or association could be sued, etc., except within six years after the "delivery" of the materials or the lending of the moneys, etc.. is not applicable to members of a banking partnership, which has no stockholders, and whose so-called directors are merely managing partners.-Campbell v. Floyd, 22 Pittsb. Leg. J. (N. S.) 253.

[o] (Pa. Com. Pl. 1896) The limitation of actions against stockholders, fixed by Act April 29, 1874, § 15 (Pub. Laws 81), has no application to actions against directors under section 39, making them liable for debts of the corporation in certain cases.-Green v. Whitehead, 5 Pa. Dist. R. 612.

[a] (Ill. Sup. 1890) actions not otherwise

II. ACCRUAL OF ACTION.

Under Rev. St. c. 83, § 15, which provides that all civil provided for shall be begun within five years next after

the cause of action accrued, an action to enforce the liability of corporate officers, created by chapter 32, § 16, is not barred until the lapse of five years from the maturity of the debt sued for.-Wolverton v. Taylor, 23 N. E. 1007, 132 Ill. 197, 22 Am. St. Rep. 521.

[b] (Ill. App. 1889) Where the directors and officers of a corporation assent to the creation of an indebtedness in excess of the capital stock, their liability for such excess, under Act April 18, 1872, arises when such excess of indebtedness is created with their assent, and from that time the statute of limitations begins to run against its enforcement.-Wolverton v. Taylor, 30 Ill. App. 70, reversed in (Sup. 1890) 23 N. E. 1007, 132 Ill. 197, 22 Am. St. Rep. 521.

[c] (Mont. Sup. 1896) Where a corporation fails to make its annual report, its trustees become at once liable individually for its debts, and the statute of limitations begins to run, as to a cause of action then accruing, in favor of a creditor.-Bank v. Johnson, 45 Pac. 662, 18 Mont. 440, 33 L. R. A. 552, 56 Am. St. Rep. 591.

[d] (N. H. Sup. 1901) Since an indebtedness which will impose the statutory liability can be created only by vote of the corporation or act of its officers, the fact that the creditors' claims were reduced to judgment against the corporation less than six years from the date the suit was brought, but more than six years from the date the liability accrued, did not prevent the claim being barred.-Swan v. Burnham, 49 Atl. 93, 70 N. H. 580.

[e] (N. H. Sup. 1901) Under Pub. St. c. 150, § 4, declaring that no corporation, except banks and insurance companies, shall contract debts exceeding one-half the value of its property, and providing that for a violation of such act by a vote of its officers the directors shall be individually liable to the amount of the excess for the debts and contracts then existing, the cause of action against the directors accrues, as against existing creditors, at the time an indebtedness exceeding one-half the property is incurred, and that the indebtedness is increased by the directors after the debt limit has been passed does not create a new cause of action to existing creditors; and hence an action thereunder is barred after six years from the date it originally accrued.Swan v. Burnham, 49 Atl. 93, 70 N. H. 580.

[f] (N. Y. Sup. 1898) Limitations do not begin to run in favor of directors neglecting to make the annual report, provided for by the stock corporation law, until the debts mature for which such neglect renders them liable.-Morgan v. Hedstrom, 49 N. Y. Supp. 1049, 25 App. Div. 547.

[g] (Pa. Sup. 1900) The cause of action against members of the board of managers of a railroad arises on the passage by them of an illegal resolution approving a purchase of stock by the president on behalf of the corporation, though payment thereunder was not till some time later; adoption of the resolution being all that it is alleged the managers personally did, everything else being in compliance with and a necessary consequence of it; and it is immaterial that plaintiffs, creditors of the railroad, did not know of the facts.Link v. McLeod, 45 Atl. 340, 194 Pa. 566.

[h] (S. C. Sup. 1883) Where corporation officers have, through failure to comply with the corporation law of 1869 (14 St. at Large, p. 297), become individually liable for the debts, the statute of limitations begins to run in their favor as individuals at the time of such failure.-Sullivan v. Manufacturing Co., 20 S. C. 79.

[i] (S. C. Sup. 1883) Where several notes of different dates issued by a corporation were taken up and consolidated into one, the statute of limitations against the enforcement of the officers' statutory individual liability for the debt begins to run at the maturity of the note, if taken as payment of the former notes; otherwise, at the maturity of the several previous notes.-Sullivan v. Manufacturing Co., 20 S. C. 79.

III. NATURE OF ACTION-PENALTY OR FORFEITURE.

[a] (U. S. C. C., Or., 1898) 2 Hill's Ann. Laws Or. § 3231, providing that, "if the directors of a corporation declare and pay dividends when the corporation is insolvent, such directors shall be jointly and severally liable for the debts of the corporation then existing, or incurred while

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