plaintiff. No question was made but that the plaintiff was injured, and, as the jury bave found that the defendant was not responsible for such injury, it is unnecessary to consider the question asked on cross-examination and excluded. Under the instruction of the court, the jury must have found that the box or catch-basin was not within the walk as traveled by the general public, or that the plaintiff was guilty of contributory negligence. It follows, therefore, that the answer to the question propounded could have no bearing upon any question considered by the jury, would have been wholly immaterial, and that the plaintiff was not harmed by its exclusion.

Mrs. McNall, a witness improved by the defendant, was asked on cross-examination whether the plaintiff had some trouble with the sister of the witness, and answered in the affirmative. In the redirect examination of the witness she was asked to state what that trouble was. The plaintiff's counsel had brought out the fact that the plaintiff bad trouble with the sister of the witness, with a view to showing that the witness had a prejudice against the plaintiff that would influence her testimony; and, the plaintiff having brought this issue into the case, it was discretionary with the court to allow the question propounded by the defendant's counsel. Bertoli v. Smith, 69 Vt. 427, 38 Atl. 76. Judgment affirmed.

Deceased was a director of a corporation for the negotiating of loans and the sale of promissory notes and other securities, organized in another state under a statute providing that directors of a corporation creating debts in excess of its subscribed capital stock are liable in their individual and private capacity to the creditors of the corporation to the full amount of the debt contracted, in the event of the dissolution of the corporation. Debts and liabilities were contracted in excess of the capital stock subscribed, and the corporation dissolved. Plaintiff purchased notes from the corporation in his state, which the corporation guarantied, but they were never paid. Held, that he could maintain an action thereon against the estate of deceased outside the state where the corporation was created, since, the statute creating the liability being contractual, and not penal, an action thereon could be. brought in any state.

Exceptions from Chittenden county; Ro well, Judge.

Action by Willis V. Farr against the estate of George C. Briggs, deceased, on a disallowed claim. To an order sustaining a demurrer to his declaration, plaintiff excepts. Reversed.

The defendant claimed, as grounds of demurrer, that the liability arising on the stat

ute of South Dakota in question was so far penal that it could not be enforced in this state, and that the right of action to enforce it did not survive.

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, START, THOMPSON, and WATSON, JJ.

W. L. Burnap and Powell & Powell, for plaintiff. Clarke C. Briggs and Seneca Haselton, for defendant.

TYLER, J. Appeal from the disallowance of a claim by the commissioners upon the estate. The following are the material facts alleged in the declaration and admitted by the demurrer: The Vermont Investment Company was a corporation created and organized in May, 1882, under the laws of South Dakota, and having offices and places of business in that state and in Burlington, Vt., for the negotiating of loans and the sale of promissory notes and other securities. The statute under which the corporation was created contains the following provision: "The directors of corporations must not make dividends except from the surplus profit arising from the business thereof; nor must they divide, withdraw or pay to the stockholders, or any of them, any part of the capital stock; nor must they create debts beyond their subscribed capital stock, or reduce or increase their capital stock, except as especially provided by law. For a violation of the provisions of this section, the directors under whose administration the same may have happened (except those who may have caused their dissent therefrom to be entered at large on the minutes of the directors at the time, or were not present when the same did happen), are, in their individual and private capacity, jointly and severally liable to the corporation, and to the creditors thereof, in the event of its dissolution, to the full amount of the capital stock so divided, withdrawn, paid out, or reduced, or debt contracted; and no statute of limitations is a bar to any suit against such directors for any sums for which they are made liable by this section." The capital stock issued and subscribed for was 523 shares, of the par value of $100 per share; yet the directors contracted debts and liabilities against the corporation largely in excess of the stock subscribed. George C. Briggs, of Burlington, was a stockholder in the corporation, was duly constituted a director thereof, and qualified and acted as such while it continued to do business. He attended its meetings, participated in its transactions, expressed no dissent to the creation of debts as aforesaid, and caused none to be entered upon its records. The corporation sold to the plaintiff in this state, and guarantied the payment of, various notes, to a large amount, and thereby became liable to pay the same to him at maturity if the makers failed to pay them. The plaintiff demanded payment of the notes and obligations so purchased by him, as they respec

tively fell due, of the makers, and, upon failure of payment by them, made demand of payment of the corporation pursuant to its guaranty. The corporation became insolvent and was dissolved in December, 1893, and all its assets were exhausted, whereupon the plaintiff presented his claim against Briggs' estate upon the ground that, as one of the directors of the corporation, by virtue of the statute Briggs became liable to pay him the amount of his debt against the corporation, and that the claim survived against his estate.

The statute of South Dakota evidently was the general law of that state under which all business corporations were required to be organized. Upon the election of the directors they became subject to all its requirements, and liable to the corporation and to its creditors, within that state, at least, for a violation thereof. The question is whether the statute had any extraterritorial force,-whether creditors outside the limits of that state have any remedy by virtue of its provisions. It is well settled that penal statutes will receive no recognition and are not enforceable in other states than the ones in which they were enacted. Story, Confl. Laws, §§ 620, 621; Halsey v. McLean, 12 Allen, 439, 90 Am. Dec. 157, and notes; Blaine v. Curtis, 59 Vt. 120, 7 Atl. 708; Adams v. Railroad Co., 67 Vt. 76, 30 Atl. 687. The plaintiff concedes this to be the rule of law, but contends that the statute under which the present action is brought is not penal, but contractual. The defendant estate claims that the statute is strictly penal. Statutes similar to that under which the present action is brought, making the directors of business corporations personally liable for their default in the performance of certain prescribed duties, have received much consideration by law writers and courts. In Cook, Corp. § 223, in Mor. Priv. Corp. 907, and in Thomp. Corp. §§ 3052, 4164, it is said that such statutes have generally been held to be penal. Courts of high authority have so held. In Bank v. Price, 33 Md. 488, a Pennsylvania statute which provided that, if any debts or liabilities should be contracted, exceeding the amount of the capital stock of the corporation actually paid in, the directors and officers contracting the same should be jointly and severally liable in their individual capacity for the whole amount of the excess, and that the same might be recovered in an action of debt, was considered as imposing a penalty, and that it could only be enforced in the state which enacted it. In Mitchell v. Hotchkiss, 48 Conn. 9, 40 Am. Rep. 146, the same doctrine was held under the statute of another state which provided that officers of certain corporations should be personally liable for the debts of the corporation in case they neglected to file an annual report showing the financial condition of the corporation. See, also, Stokes v. Stickney, 96 N. Y. 323; Carr v. Rischer, 119 N. Y. 117, 23 N. E. 296. The same was held

in Derrickson v. Smith, 27 N. J. Law, 166, in Diversey v. Smith, 103 Ill. 378, 42 Am. Rep. 14, and in Chase v. Curtis, 113 U. S. 452, 5 Sup. Ct. 554, 28 L. Ed. 1038.

In Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123, the court gave construction to a New York statute, in violation of which the defendant, as a director of a business corporation, signed and made oath to a certificate which he knew to be false,that the whole of the capital stock of the corporation had been paid in, when in fact no part of it had been paid in. The statute made him liable for all the debts of the corporation, which included that of the plaintiff. The question whether this was a penal statute, having no force out of the state where enacted, was elaborately discussed by the court, and this statement of the law was laid down: "The question whether a statute of one state, which in some aspects may be called penal, is a penal law in the international sense, so that it cannot be enforced in the courts of another state, depends upon the question whether its purpose is to punish an offense against the public justice of the state, or to afford a private remedy to a person injured by the wrongful act." The court held that the act was in no sense criminal or quasi criminal; that it made the stockholders individually liable for the debts of the corporation until the capital stock was paid in and a certificate was filed, and made the officers liable for any false and material representation in the certificate; that the individual liability of the stockholders takes the place of a corporate fund until that fund has been duly created, and that the individual liability of the officers takes the place of the corporate fund in case their statement that it has been duly created is false; that the statute gives a civil remedy at the private suit of the creditor only, and, measured by the amount of his debt, it is, as to him, clearly remedial; that to maintain such a suit is not to administer a punishment imposed upon an offender against the state, but simply to enforce a private right secured under the laws to an individual; that it is not a penal law in the sense that it cannot be enforced in a foreign state or country. In Neal v. Moultrie, 12 Ga. 104, the charter of a bank provided that the total amount of the debts which the corporation should at any time owe should not exceed three times the amount of stock paid in, and made the directors liable for such excess. Held, that as a right of action and recovery was given to individuals, or a particular class of individuals, the act was remedial, and not penal. The court remarked that the act not only looked to the interests of the public at large, but "it was also a measure of individual security which created rights in individual citizens." In Witters v. Foster (C. C.) 26 Fed. 737, cited by defendant, which was a bill of revivor, the original bill charged the intestate, with other directors of a bank, with neglect of duty in not requiring a bond of the

cashier, in allowing persons to become indebted to an amount exceeding one-tenth of the capital, and in reckoning assets as good as a basis of dividends, when they were worthless, etc., in violation of United States statutes. These statutes gave no remedy to the creditors or stockholders, and the court held that the ground of the orator's claim was the personal and official guilt of the intestate, for the omission of duties which, had they been performed, might have benefited the assets of the bank, and that the cause of action did not survive. The same court (Wheeler, J.), in an action to enforce the personal liability of directors of a corporation under a Vermont statute which provided that the corporation should not contract debts exceeding threefourths the amount of its capital paid in, and made the stockholders and directors personally holden to the creditors if the indebtedness should exceed that amount, held that the directors' liability for the debt arose out of the assent to the contract creating the debt, and was that of contracting debtors, and clearly drew the distinction between such a statute and one that declared liability for some act or neglect in no way connected with the contracting of debts, as for neglect to file reports, which the court said was penal. Field v. Haines (C. C.) 28 Fed. 919. See, also, Railroad Co. v. Graves (C. C.) 80 Fed. 588, where this distinction is maintained; Cook, Corp. § 1; Thomp. Corp. §§ 4166, 8525, 8526; Mor. Priv. Corp. § 908.

The defendant cites Institution v. Sprague, 43 Vt. 502, which arose under the same statute as Field v. Haines and to enforce a similar liability. The court used the expression that "the creation of this additional liability seems to have been intended as a check upon the directors and stockholders in the contraction of debts, and to have been imposed, in some sort, as a penalty. * * It also said, "To visit this penalty upon any others than those who caused the infraction of the charter would be manifestly unjust," etc. The word "penalty" may have been used inadvertently. It clearly was used in no other sense than that a party should make pecuniary payment for the breach of his contract. Cady v. Sanford, 53 Vt. 632, was a case against the defendants as directors of a corporation organized under the laws of this state, which made them personally liable for debts contracted before publishing the articles of association. The liability of the directors was treated as contractual, though the case was decided for the defendants upon the ground that their liability was only collateral to that of the company, and that no debt against the company had been established. Blaine v. Curtis, 59 Vt. 120, 7 Atl. 708, was an action to recover a penalty imposed by the statute of New Hampshire for taking unlawful interest. The statute was held to be penal, but the court said: "If it only gave a remedy for an injury against the person by whom

it was committed, to the person injured, and limited the recovery to the mere amount of loss sustained, or to cumulative damages as compensation for the injury sustained, it would fall within the class of remedial statutes." This is the rule laid down in Bones v. Booth, 2 W. Bl. 1226, "that where the damages are given wholly to the party injured, as compensation for the wrong and injury, the statute, having for its object more the indemnification of the plaintiff than the punishment of the defendant, the action is not penal, properly so called, but remedial."

It appears by the cases above referred to that it was the doctrine of this court long before Huntington v. Attrill was decided that, where the purpose of a statute is to furnish a remedy to creditors who have been injured by the directors' violation of the requirements of the statute, the liability of such officers is contractual, and actions upon such statutes are transitory, and can be brought in any state in courts of competent jurisdiction. Some of the decisions by courts of other states in which a different doctrine has been held have been rendered upon statutes not containing the remedy for creditors which is expressly provided in the South Dakota statute. That statute clearly is not penal, either in its letter or intent; but it grants a right of action to private persons who have suffered pecuniary injury in consequence of certain officers of corporations violating the statute, to recover damages of those officers, the extent of whose liability is the amount of pecuniary loss sustained by such private persons, creditors of the corporation. No public wrong was committed when the directors exceeded the prescribed limit in creating debts. The creditors were the only persons upon whom a wrong was committed, and they have a remedy by virtue of the quasi contract which the directors entered into with them when the sales of securities were made, to the effect that the directors were not exceeding the prescribed limits in creating debts. The obligation which the statute imposed upon the directors not to create debts beyond a certain limit entered into the contracts of sales of securities which the directors made through their agents. The directors created the debt in this jurisdiction, and the statute of the sister state fixes the extent of their liability, which does not arise from their personal misconduct, merely, irrespective of its effect upon the property rights of others; but as was said by the court in Field v.. Haines, supra, "the liability arises out of the assent to the contract creating the debt." As was said in Institution v. Sprague, supra, in respect to directors: "They can keep the indebtedness of the company within the limits fixed by the legislature, or they can extend that indebtedness beyond that limit, and voluntarily take upon themselves the relation of joint debtors to the creditors of

the company." The liability is similar to that of sureties and guarantors, and evidently was imposed partly for the purpose of inducing the directors to perform their prescribed duties, and partly as a means of securing the creditors of corporations from losses occasioned by the acts of their officers. Pro forma judgment reversed, demurrer overruled, declaration held sufficient, and cause remanded.

(72 Vt. 185)

SHELDON v. CLEMMONS. (Supreme Court of Vermont. Bennington. March 27, 1900.)

ASSIGNMENT FOR CREDITORS APPEAL-DECREE SUSTAINING DEMURRER APPEAL FROM FINAL DECREE-REVIEW-CONFLICTING EVIDENCE-JUDGMENT - VACATION FRAUD-EVIDENCE-SUFFICIENCY.

1. Where a demurrer to part of a bill was sustained by a master in chancery, from which the orator could not appeal because the decree sustaining it was not final, but interlocutory, under V. S. § 981, such decree may be reviewed on appeal from the final decree of the chancery court overruling the orator's exceptions to the master's report and dismissing his bill, since the appeal from such final decree brought up the whole case.

2. Where, in a suit by an assignee in insolvency to restrain defendant from enforcing a Judgment against the insolvent estate on the ground that there was a collusive agreement between the parties, the evidence was conflicting as to such fraud, the master's finding that there was no collusion is conclusive on appeal.

3. Where defendant obtained judgment against an insolvent who had demands which he might have pleaded as an offset or in payment in the action, the mere fact, unexplained, that he did not so plead them, does not establish the allegation that the judgment was obtained by fraud and collusion between the parties, and entitle the assignee of the insolvent to have the judgment set aside.

Appeal in chancery, Bennington county; Munson, Chancellor.

Bill by Moses Sheldon, as assignee in insolvency of Warren Clemmons, against Louise Clemmons, to restrain the enforcement of a judgment against the insolvent estate. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Argued before TAFT, C. J., and ROWELL, TYLER, START, THOMPSON, and WATSON, JJ.

W. B. Sheldon, for the orator. Barber & Darling, J. K. Batchelder, and F. C. Archibald, for defendant.

TYLER, J. It appears from the master's report that the defendant brought a suit in the Bennington county court against her brother, Warren Clemmons, in which she sought to recover a balance which she claimed was due upon her sale to him in February, 1881, of all her interest in the personal and real estate of their father. In consideration of the sale and conveyance, Warren was to pay all the defendant's existing liabilities, and pay her the difference between the amount thereof and the value of

the property conveyed, which value was never agreed upon. The suit was tried at the June term, 1894, and this defendant obtained a judgment for $3,180 and costs, which was affirmed by this court at the January term, 1895. 68 Vt. 77, 34 Atl. 34. In December, 1894, the orator was appointed assignee in insolvency of Warren Clemmons' estate; and in June, 1895, he brought this bill, alleging that said judgment was obtained through the fraud and collusion of the parties to that suit, and praying that this defendant be enjoined from enforcing her judgment lien upon the insolvent estate. The defendant demurred to a part, and answered the remainder, of the bill. The demurrer was sustained, and the allegations contained in the part of the bill demurred to were held insufficient, and no appeal was taken by the orator. Upon the coming in of the master's report, the court of chancery, pro forma, overruled the orator's exceptions thereto and his motion to recommit, and entered a decree dismissing the bill, with costs, and the orator appealed. The defendant presented the judgment which she obtained in this court to the court of insolvency, and it was allowed. The orator appealed to the county court, which rendered judgment for the defendant, and there was an affirmance by this court at the May term, 1897. 69 Vt. 545, 38 Atl. 314.

As the decree of the court of chancery sustaining the demurrer was not final, but interlocutory, the orator could not have appealed from it. V. S. § 981. That decree remained in the court of chancery until the final decree was made, when the appeal therefrom brought the whole case here. Upon consideration we hold that the demurrer was properly sustained. If it were found necessary to overrule it in this court, the allegations demurred to would stand admitted, under the rule that the effect of a demurrer is to admit all facts that are well pleaded. The situation would then be that a part of the allegations in the bill stood admitted, while the master found that the allegations to which the defendant had filed her answer were not sustained. This would cause no embarrassment, however; for, upon the case being remanded, leave would be given the defendant to apply to the court of chancery for permission to withdraw the demurrer and answer the allegations that had been demurred to, and such permission would generally be granted. This is the usual practice when the demurrer is to the whole bill, and would doubtless be followed when it is to a part, unless the case were exceptional. such answer were filed, the case could then go to a master for a further finding and report, if necessary in making a final decree.

If

The main question in the case was the one submitted to the master,-whether there was a collusive agreement or understanding between the parties to the suit at law, to the effect that the plaintiff therein should obtain

He

a larger judgment than she was entitled to, and thereby defraud the defendant's other creditors. The master states that this was the proposition upon which the orator based his claim. It was evidently a sharply controverted question; Warren contradicting his testimony in the suit at law, and testifying that there was such an agreement, and his sister denying it. It was the master's province to determine that question upon the evidence, and he has found that there was no collusion, and his finding is conclusive. finds that the defendant in the suit at law had demands upon which the plaintiff was liable with others, which, by the terms of the agreement between the parties, were applicable to the plaintiff's demand against the defendant, and might have been pleaded by him in offset or in payment. Why they were not so pleaded the master is unable to find, but does find that it was not by reason of any collusion between the parties. The mere fact, unexplained, that the defendant in that suit did not plead his demands in offset, does not establish the allegation of fraud, and entitle the orator to have the judgment set aside. The pro forma decree is affirmed, and cause remanded, with mandate that the bill be dismissed.

An approaching train was hidden from plaintiff's view until he was near the crossing, and the sound of it was obstructed by an intervening embankment. Plaintiff, having good sight and hearing, was driving a wagon, heavily loaded, at about the rate of four miles an hour, his team making considerable noise on the frozen ground, and, without slackening his speed, drove on the crossing, and was injured by the train. Plaintiff was a stranger in the locality, but was apprised of the crossing by a sign visible for some distance. The train had not given any signals on approaching the crossing, though all was done that was possible to avoid the accident after plaintiff was discovered. Held, that a verdict for defendant was properly directed, since plaintiff was guilty of negligence precluding his recovery, though the defendant may have been negligent in failing to give the signals for the crossing.

Start and Thompson, JJ., dissenting. Exceptions from Caledonia county court; Rowell, Judge.

Action by W. H. Carter against the Central Vermont Railroad Company to recover for personal injuries received in crossing defendant's track at a highway crossing. From a judgment on a verdict directed for defendant, plaintiff brings exceptions. Affirmed.

There was no evidence tending to show that defendant did not do what it could to avoid disaster after it discovered the plaintiff in a position of peril.

Argued before TAFT, C. J., and TYLER, MUNSON, START, THOMPSON, and WATSON, JJ.

Wendell P. Stafford, for plaintiff. Dunnett & Slack and Hunton & Stickney, for defendant.

TYLER, J. At the close of the plaintiff's testimony, the defendant moved the court to direct a verdict for the defendant, for that it appeared that the plaintiff was guilty of contributory negligence in approaching and driving upon the railroad track with too great speed, and in not using his eyes and ears with vigilance to discover and avoid the approaching train. The court granted the motion, and directed a verdict and judgment for the defendant, which direction the plaintiff claims was error.

There being no conflict in the testimony in respect to the facts and circumstances attending the occurrence of the accident, the only question was whether those facts and circumstances were so decisive of the plaintiff's contributory negligence that there was O room for rational doubt upon the subject.

The rule has been stated in many different forms, but it is this, in substance: When it appears from undisputed facts, from the plaintiff's own evidence, that he was not in the exercise of that degree of care which careful and prudent men would exercise in circumstances of like exposure and danger, the question of the plaintiff's right to recover is one of law for the court. If the circumstances are such that reasonable minds might draw different conclusions respecting the plaintiff's fault, he is entitled to go to the jury upon the facts. The judge takes the case from the jury only when it is susceptible of but one just opinion. Railroad Co. v. Nowicki, 148 Ill. 29, 35 N. E. 358. In Scheiber v. Railway Co. (Minn.) 63 N. W. 1034, after remarking that the decisive test is whether or not fair-minded men could honestly differ as to the inferences to be drawn from admitted facts, Start, C. J., said: "This rule must be applied in practice with caution, lest the courts usurp the functions of the jury, and unwittingly deprive a party of his constitutional right to a trial by jury; and, if there is a fair doubt as to the inferences to be drawn from an admitted state of facts, the question must be submitted to the jury; but, in the absence of such fair doubt, it is equally the duty of the court to decide the question as one of law, and instruct the jury accordingly." Shear. & R. Neg. § 56, states the rule thus: "When the facts are clearly settled, and the course which common prudence dictated can be so clearly discerned that only one inference can be drawn, * * it is the duty of the court to take the case away from the jury. * The question is then one of law for the court to decide." Worthington v. Railroad Co., 64 Vt. 107, 23 Atl. 590, 15 L. R. A. 326.

*

The duty of a traveler on arriving at a