grieved," because the provisions in question, | Hun, 48; Iron Co. v. Pierce, 4 Biss. 327; Breisaid the court, "impose a penalty, or a liabil ity in that nature." Bank v. Bliss, 35 N. Y. 412, 417. A count against a person as an officer for not filing a report cannot be joined with one against him as a stockholder for debts contracted before a report is filed, that being "an action on contract." Wiles v. Suydam, 64 N. Y. 173, 176. The action against an officer is an action ex delicto, and therefore does not survive against his personal representatives. Stokes v. Stickney, 96 N. Y. 323. In a later case than any of these, the court, in affirming the very judgment now sued on, and adjudging the statute of 1875 to be constitutional and valid, said that "while liability, within the provision in question, is in some sense penal in its character, it may bave been intended for the protection of creditors of corporations created pursuant to that statute." Huntington v. Attrill, 118 N. Y. 365, 378, 23 N. E. Rep. 544. And where such an action against an officer went to judgment before the death of either party, it was decided that "the original wrong was merged in the judgment, and that then became property, with all the attributes of a judgment in an action ex contractu," and that if, after a reversal of judgment for the plaintiff, both parties died, the plaintiff's representatives might maintain an appeal from the judgment of reversal, and have the defendant's representatives summoned in. Carr v. Rischer, 119 N. Y. 117, 124, 23 N. E. Rep. 296. We do not refer to these decisions as evidence in this case of the law of New York, because in the courts of Maryland that law could only be proved as a fact, and was hardly open to proof on the demurrer, and, if not proved in those courts, could not be taken judicial notice of by this court on this writ of error. Hanley v. Donoghue, 116 U. S. 1, 6 Sup. Ct. Rep. 242; Chicago & A. R. Co. v. Wiggins Ferry Co., 119 U. S. 615, 7 Sup. Ct. Rep. 398; Wernwag v. Pawling, 5 Gill & J. 500, 508; Coates v. Mackey, 56*Md. 416, 419. Nor, for reasons to be stated presently, could those decisions, in any view, be regarded as concluding the courts of Maryland, or this court, upon the question whether this statute is a penal law, in the international sense. But they are entitled to great consideration, because made by a court of high authority, construing the terms of a statute with which it was peculiarly familfar; and it is satisfactory to find no adjudication of that court inconsistent with the view which we take of the liability in question. That court and some others, indeed, have held that the liability of officers under such a statute is so far in the nature of a penalty that the creditors of the corporation have no vested right therein, which cannot be taken away by a repeal of the statute before judgment in an action brought thereon. Manufacturing Co. v. Beecher, 97 N. Y. 651, 26 tung v. Lindauer, 37 Mich. 217, 230; Gregory v. Bank, 3 Colo. 332. But whether that is so, or whether, within the decision of this court in Hawthorne v. Calef, 2 Wall. 10, 23, such a repeal so affects the security which the creditor had when his debt was contracted as to impair the obligation of his contract with the corporation, is aside from the question now before us. It is true that the courts of some states, including Maryland, have declined to enforce a similar liability imposed by the statute of another state. But in each of those cases it appears to have been assumed to be a sufficient ground for that conclusion that the liability was not founded in contract, but was in the nature of a penalty imposed by statute; and no reasons were given for considering the statute a penal law, in the strict, primary, and international sense. Derrickson v. Smith, 27 N. J. Law, 166; Halsey v. McLean, 12 Allen, 438; Bank v. Price, 33 Md. 487. It is also true that in Engine Co. v. Hubbard, 101 U. S. 188, 192, Mr. Justice Clifford referred to those cases by way of argument. But in that case, as well as in Chase v. Curtis, 113 U. S. 452, 5 Sup. Ct. Rep. 554, the only point adjudged was that such statutes were so far penal that they must be construed *strictly; and in both cases jurisdiction was. assumed by the circuit court of the United States, and not doubted by this court, which could hardly have been if the statute had been deemed penal, within the maxim of international law. In Flash v. Conn, 109 U. S. 371, 3 Sup. Ct. Rep. 263, the liability sought to be enforced under the statute of New York was the liability of a stockholder arising upon contract; and no question was presented as to the nature of the liability of officers. But in Hornor v. Henning, 93 U. S. 228, this court declined to consider a similar liability of officers of a corporation in the District of Columbia as a penalty. See, also, Neal v. Moultrie, 12 Ga. 104; Cady v. Sanford, 53 Vt. 632, 639, 640; Nickerson v. Wheeler, 118 Mass. 295, 298; Post v. Railroad Co., 144 Mass. 341, 345, 11 N. E. Rep. 540; Woolverton v. Taylor, 132 Ill. 197, 23 N. E. Rep. 1007; Mor. Corp. (2d Ed.) § 908. The case of Railway Co. v. Humes, 115 U. S. 513, 6 Sup. Ct. Rep. 110, on which the defendant much relied, related only to the authority of the legislature of a state to compel railroad corporations neglecting to provide fences and cattle guards on the lines of their roads to pay double damages to the owners of cattle injured by reason of the neglect; and no question of the jurisdiction of the courts of another state to maintain an action for such damages was involved in the case, suggested by counsel, or in the mind of the court. The true limits of the international rule are well stated in the decision of the judicial committee of the privy council of England, upon an appeal from Canada, in an action brought | the state whose law had been infringed. by the present plaintiff against Attrill in the province of Ontario upon the judgment to enforce which the present suit was brought. The Canadian judges, having in evidence before them some of the cases in the court of❘ appeals of New York, above referred to, as well as the testimony of a well-known lawyer of New York that such statutes were, and had been held by that court to be, strictly penal and punitive, differed in opinion upon the question whether the statute of New York was a penal law, which could not be enforced in another country, as well as upon the question whether the view taken by *the courts of New York should be conclusive upon foreign courts, and finally gave judgment for the defendant. Huntington v. Attrill, 17 Ont. 245, and 18 Ont. App. 136. In the privy council, Lord Watson, speaking for Lord Chancellor Halsbury and other judges, as well as for himself, delivered an opinion in favor of reversing the judgment | below, and entering a decree for the appellant, upon the ground that the action "was not, in the sense of international law, penal, or, in other words, an action on behalf of the government or community of the state of New York for punishment of an offense against their municipal law." The fact that that opinion has not been found in any series of Reports readily accessible in this country, but only in 8 Law T. R. 341, affords special reasons for quoting some passages. "The rule" of international law, said Lord Watson, "had its foundation in the wellrecognized principle that crimes, including in that term all breaches of public law punishable by pecuniary mulct or otherwise, at the instance of the state government, or of some one representing the public, were local in this sense, that they were only cognizable and punishable in the country where they were committed. Accordingly no proceeding, even in the shape of a civil suit, which had for its object the enforcement by the state, whether directly or indirectly, of punishment imposed for such breaches by the lex loci, ought to be admitted in the courts of any other country. In its ordinary acceptation, the word 'penal' might embrace penalties for infractions of general law, which did not constitute offenses against the state; it might, for many legal purposes, be applied with perfect propriety to penalties created by contract; and it, therefore, when taken by itself, failed to mark that distinction between civil rights and criminal wrongs which was the very essence of the international rule." After observing that, in the opinion of the judicial committee, the first passage above quoted from Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 290, 8 Sup. Ct. Rep. 1370, “disclosed the proper test for ascertaining whether an action was penal, within the meaning of the rule," he added: "A proceeding, in order to come within the scope of the rule. must be in the nature of a suit in*favor of All the provisions of municipal statutes for the regulation of trade and trading companies were presumably enacted in the interest and for the benefit of the community at large; and persons who violated those provisions were, in a certain sense, offenders against the state law, as well as against individuals who might be injured by their misconduct. But foreign tribunals did not regard those violations of statute law as offenses against the state, unless their vindication rested with the state itself, or with the community which it represented. Penalties might be attached to them, but that circumstance would not bring them within the rule, except in cases where those penalties were recoverable at the instance of the state, or of an official duly authorized to prosecute on its behalf, or of a member of the public in the character of a coinmou informer. An action by the latter was regarded as an actio popularis, pursued, not in his individual interest, but in the interest of the whole community." He had already, in an earlier part of the opinion, observed: "Their lordships could not assent to the proposition that, in considering whether the present action was penal in such sense as to oust their jurisdiction, the courts of Ontario were bound to pay absolute deference to any interpretation which might have been put upon the statute of 1875 in the state of New York. They had to construe and apply an international rule, which was a matter of law entirely within the cognizance of the foreign court whose jurisdiction was invoked. Judicial decisions in the state where the cause of action arose were not precedents which must be followed, although the reasoning upon which they were founded must always receive careful consideration and might be conclusive. The court appealed to must determine for itself, in the first place, the substance of the right sought to be enforced; and, in the second place, whether its enforcement would, either directly or indirectly, involve the execution of the penal law of another state. Were any other principle to guide its decision, a court might find itself in the position of giving effect in one case, and denying effect in another, to suits of the% same character, in consequence of the causes of action having arisen in different countries, or in the predicament of being constrained to give effect to laws which were, in its own judgment, strictly penal." In this view, that the question is not one of local, but of international, law, we fully concur. The test is not by what name the statute is called by the legislature or the courts of the state in which it was passed, but whether it appears, to the tribunal which is called upon to enforce it, to be, in its essential character and effect, a punishment of an offense against the public, or a grant of a civil right to a private person. In this country, the question of international law must be determined in the first in 684 stance by the court, state or national, in which the suit is brought. If the suit is brought in a circuit court of the United States, it is one of those questions of general jurisprudence which that court must decide for itself, uncontrolled by local decisions. Burgess v. Seligman, 107 U. S. 20, 33, 2 Sup. Ct. Rep. 10; Railway Co. v. Cox, 145 U. S. 593, 605, 12 Sup. Ct. Rep. 905, above cited. If a suit on the original liability under the statute of one state is brought in a court of another state, the constitution and laws of the United States have not authorized its decision upon such a question to be reviewed by this court. Insurance Co. v. Hendren, 92 U. S. 286; Roth v. Ehman, 107 U. S. 319, 2 Sup. Ct. Rep. 312. But if the original liability has passed into judgment in one state, the courts of another state, when asked to enforce it, are bound by the constitution and laws of the United States to give full faith and credit to that judgment; and, if they do not, their decision, as said at the outset of this opinion, may be reviewed and reversed by this court on writ of error. The essential nature and real foundation of a cause of action, indeed, are not changed by recovering judgment upon it. This was directly adjudged in Wisconsin v. Pelican Ins. Co., above cited. The difference is only in the appellate jurisdiction of this court in the one case or in the other. If a suit to enforce a judgment rendered in one state, and which has not changed the essential nature of the liability, is brought in the courts of another state, this court, in order to determine, on writ of error. whether the highest court of the latter state has given full faith and credit to the judgment, must determine for itself whether the original cause of action is penal, in the international sense. The case, in this regard, is analogous to one arising under the clause of the constitution which forbids a state to pass any law impairing the obligation of contracts, in which, if the highest court of a state decides nothing but the original construction and ob- | ligation of a contract, this court has no jurisdiction to review its decision; but if the state court gives effect to a subsequent law, which is impugned as impairing the obligation of a contract, this court has power, in order to determine whether any contract has been impaired, to decide for itself what the true construction of the contract is. New Orleans Water-Works Co. v. Louisiana SugarRefining Co., 125 U. S. 18, 38, 8 Sup. Ct. Rep. 741. So if the state court, in an action to enforce the original liability under the law of another state, passes upon the nature of that liability, and nothing else, this court cannot review its decision; but if the state court declines to give full faith and credit to a judgment of another state, because of its opinion as to the nature of the cause of action on which the judgment was recovered, this court, in determining whether full faith and credit have been given to that judgment, must decide for itself the nature of the orig. inal liability. Whether the court of appeals of Maryland gave full faith and credit to the judgment recovered by this plaintiff in New York depends upon the true construction of the provisions of the constitution of the act of congress upon that subject. The provision of the constitution is as follows: "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state; and the congress may, by general laws, prescribe the manner in which such acts, rerords, and proceedings shall be proved, and the effect thereof." Article 4, § 1. This clause of the constitution, like the less perfect provision on the subject in the articles of confederation, as observed by Mr. Justice Story, "was intended to give the same conclusive effect to judgments of all the states, so as to promote uniformity, as well as certainty, in the rule among them," and had three distinct objects: First, to declare, and by its own force establish, that full faith and credit should be given to the judgments of every other state; second, to authorize congress to prescribe the manner of authenticating them; and, third, to authorize congress to prescribe their effect when so authenticated. Story, Const. §§ 1307, 1308. Congress, in the exercise of the power so conferred, besides prescribing the manner in which the records and judicial proceedings of any state may be authenticated, has defined the effect thereof, by enacting that “the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken." Rev. St. § 905, re-enacting act of May 26, 1790, c. 11, (1 St. p. 122.) These provisions of the constitution and laws of the United States are necessarily to be read in the light of some established principles, which they were not intended to overthrow. They give no effect to judgments of a court which had no jurisdiction of the subject-matter or of the parties. D'Arcy v. Ketchum, 11 How. 165; Thompson v. Whitman, 18 Wall. 457. And they confer no new jurisdiction on the courts of any state, and therefore do not authorize them to take jurisdiction of a suit or prosecution of such a penal nature that it cannot, on settled rules of public and international law, be entertained by the judiciary of any other state than that in which the penalty was incurred. Wisconsin v. Pelican Ins. Co., above cited. Nor do these provisions put the judgments of other states upon the footing of domestic judgments to be enforced by execution; but they leave the manner in which they may be enforced to the law of the state in which they are sued on, pleaded, or offered in evidence. McElmoyle v. Cohen, 13 Pet. 312, 325. But, when duly pleaded and proved in 989. ⚫687 a court of that state, they have the effect of stock in April, 1882, with intent to hinder, befog, not merely prima facie evidence, but delay, and defraud the plaintiff of his lawful conclusive proof, of the rights thereby adjudicated; and a refusal to give them the force and effect, in this respect, which they had in the state in which they "were rendered, denies to the party a right secured to him by the constitution and laws of the United States. Christmas v. Russell, 5 Wall. 290; Green v. Van Buskirk, Id. 307, and 7 Wall. 139; Insurance Co. v. Harris, 97 U. S. 331, 336; Crescent City Live-Stock Co. v. Butchers' Union Slaughter-House Co., 120 U. S. 141, 146, 147, 7 Sup. Ct. Rep. 472; Carpenter v. Strange, 141 U. S. 87, 11 Sup. Ct. Rep. 960. The judgment rendered by a court of the state of New York, now in question, is not impugned for any want of jurisdiction in that court. The statute under which that judgment was recovered was not, for the reasons already stated at length, a penal law, in the international sense. The faith and credit, force and effect, which that judgment had by law and usage in New York was to be conclusive evidence of a direct civil liability from the individual defendant to the individual plaintiff for a certain sum of money, and a debt of record, on which an action would lie, as on any other civil Judgment inter partes. The court of appeals of Maryland, therefore, in deciding this case against the plaintiff, upon the ground that the judgment was not one which it was bound in any manner to enforce, denied to the judgment the full faith, credit, and effect to which it was entitled under the constitution and laws of the United States. Judgment reversed, and case remanded to the court of appeals of the state of Maryland for further proceedings not inconsistent with the opinion of this court. Mr. Justice LAMAR and Mr. Justice SHIRAS, not having heard the argument, took no part in the decision of this case. Mr. Chief Justice FULLER, dissenting. This suit was not an action at law to recover judgment in Maryland upon the judgment in New York, nor was it an ordinary creditors' bill brought by a creditor to reach equitable assets. The judgment and execution had no extraterritorial force, and Huntington was a judgment creditor in New York enly. It was the bill of a creditor at large to set aside an alleged fraudulent transfer, judgment not being essential under the statute of Maryland in that behalf. It could not have been sustained at all but for that act, and it did not assume to proceed upon the theory that the transfer was invalid because made with intent to defeat the collection of the judginent as such. The judgment of another state could not be made executory in Maryland, either at law or in equity. The ground of relief in this case was the charge that Attrill had transferred certain suits, debts, and demands in respect of a liability of Attrill to him as a stockholder and as a director of the Rockaway Company, which accrued in 1880, upon the statute of New York, under which that company was organized. An action upon this liability, either as stockholder or director, was barred by the statute of limitations of Maryland, and so the Maryland court held. The judgment recovered in New York in 1886 by Huntington against Attrill upon the alleged liability as a director was, however, referred to and made part of the bill, and in this judgment that cause of action had been merged; and it was averred that the transfer was fraudulent as to the indebtedness arising "out of the cause of action on which the judgment hereinbefore recited has been recovered," which was set forth in detail. The New York statute was made part of the pleading, and admitted as a fact by the demurrer; and, while the Maryland court held that the judgment was conclusive evidence of its existence in the form and under the circumstances stated in the pleadings, it regarded it as not changing the character of the liability upon which it was based. The record established the relation of debtor and creditor at the time stated, and the amount and fact of the indebtedness, but nothing further. As plaintiff had no judgment in Maryland, and had not sought to recover one, the pleader, in order to make out the alleged fraud as perpetrated in 1882, went into the original cause of action at large, and invited the attention of the court to its nature. The question at once arose whether the courts of Maryland were constrained to enforce such a cause of action, although record evidence of its maintenance in New York existed in the form of a judgment there. The court held that the liability was not one arising upon contract, but one imposed upon Attrill as a wrongdoer; that under the statute no inquiry was to be made whether the creditor had been deceived and induced by deception to lend his money or to give credit, or whether he had incurred loss to any extent by the inability of the corporation to pay, nor was the recovery limited to the amount of the loss sustained; that all that it was necessary to show was that the act had been committed, and thereupon any creditor was entitled to recover the full amount of his debt. See Torbett v. Eaton, 113 N. Y. 623, 20 N. E. Rep. 876; Id., 49 Hun, 209, 1 N. Y. Supp. 614; Huntington v. Attrill, 118 N. Y. 365, 23 N. E. Rep. 544. Hence the court concluded that the liability was in the nature of a penalty, within the rule theretofore laid down by the courts of New York, (Bank v. Bliss, 35 N. Y. 412; Wiles v. Suydam, 64 N. Y. 173; Stokes v. Stickney, 96 N. Y. 323; Chase v. Curtis, 113 U. S. 452, 5 Sup. Ct. Rep. 554; Flash v. Conn, 109 U. S. 371, 3 Sup. Ct. Rep. 263,) and by the courts of Maryland, (Bank v. Price, 33 Md. 487; Norris v. Wrenschall, 34 Md. 492.) Its enforcement was therefore declined, and the bill dismissed. It was for the Maryland court to determine whether such enforcement would either directly or indirectly involve the execution of the penal laws of another state; and, although it might have been mistaken in the conclusion arrived at, such error does not give this court jurisdiction to review its judgment. State courts do not adjudicate in the matter of the enforceability of statutory delicts at their peril. In my opinion, the Maryland court gave all the force and effect to the judgment in question to which it was entitled. The pleadIngs were necessarily confined to the equities arising out of the original cause of action, and full faith and credit were accorded to the judgment as matter of evidence. Its effect as such could not render it incompetent for the state court to decide for itself the question which was raised upon the record. As there presented, it was for that court to say whether the obligation on Attrill to pay the sum for which the judgment was given was an obligation which the Maryland court was bound to recognize as proper foundation for relief in equity in respect of the transfer of April, 1882. I think that no federal question was involved, and that the writ of error ought to be dismissed. (147 U. S. 36) STREETER ▼. JEFFERSON COUNTY NAT. BANK. (January 3, 1893.) No. 81. BANKRUPTCY-PREFERENCES--Negotiable InstruMENTS-DISCHARGE OF INDORSER. A judgment and execution against the makers of promissory notes were set aside in a suit by the makers' assignee in bankruptcy, as constituting an unlawful preference, within the purview of the bankrupt law; the attorneys who procured the judgment having been the makers' attorneys, and aware of their insolvent condition, and of their desire that the holder should be preferred. At the commencement of the assignee's suit the sheriff having custody of the goods seized on execution was, with consent of the judg ment creditor, appointed receiver, and sold the goods, and paid the proceeds into court by its order to await the result of the suit, and the proceeds were finally turned over to the assignee. Held, that the transaction amounted to a surrender of the preference under Rev. St. § 5084, providing that any person, having received any preference contrary to the bankrupt law, shall not prove the claim for which such preference was given without first surrendering to the assignee all benefit or advantage received by him under such preference; that the action of the holder of the notes in procuring such judgment, and issuing such execution, did not amount to actual fraud, within the meaning of section 5021, as amended in 1874, providing that, in cases of actual fraud on the part of the creditor, he shall not be allowed to prove for more than a moiety of his claim; and that the holder of the notes was not precluded by these acts from maintain ing an action on the notes against the indorser, who was not a party to the original suit. 12 N. E. Rep. 706, 106 N. Y. 186, affirmed. In error to the supreme court of the state of New York. Action by the Jefferson County National Bank against John C. Streeter upon promissory notes. Judgment for plaintiff. 12 N. E. Rep. 706, 106 N. Y. 186. Defendant brings error. Affirmed. Statement by Mr. Justice SHIRAS: *On each of the dates, January 21 and February 7, and February 12, 1877, at the city of Watertown, Jefferson county, N. Y., Henry V. Cadwell, James C. Cadwell, and Lewis A. Cadwell, copartners doing business as such under the firm name of H. V. Cadwell & Co., executed their promissory note, payable one month from date, to the order of H. V. Cadwell & Co. at the Jefferson County National Bank of Watertown, N. Y., the first two notes being for the sum of $1,000 each, and the third for $750. Each of said notes was indorsed by the firm in their firm name, and by John C. Streeter as accommodation indorser, and passed into the possession of the bank, the defendant in error. The notes, at their maturity, were presented for payment where the same were payable, and payment thereof demanded, which was refused; whereupon the notes were duly protested for nonpayment, and notice of such demand, refusal, and protest, in each instance thereof, was then and there duly given to each of said indorsers. On or about the 16th day of March, 1877, the bank commenced an action on the three notes in the supreme court of the state of New York against Henry V. Cadwell, James C. Cadwell, and Lewis A. Cadwell, and such proceedings were had therein that the plaintiff, the said bank, recovered a judgment against the makers of the said notes for the full amount thereof. In this action the plaintiff in error, John C. Streeter, was impleaded as a defendant, but no service was made on him, and he did not appear. On the same day an execution on the judgment was issued and delivered to the sheriff of Jefferson county, who by virtue thereof levied upon the property of the defendants to an amount sufficient to satisfy the execution. On the day the said levy was made, a petition in bankruptcy was filed in the district court of the United States for the northern district of New York against the said Henry V. Cadwell, James C. Cadwell, and Lewis A. Cadwell, upon which petition the said Cadwells were, on May 1, 1877, adjudged bankrupts, and an assignee of their property was appointed. By order of the court the sale, by virtue of the said execution, of the property so levied upon was enjoined, and the sheriff was appointed receiver of the estate of the said bankrupts, and directed to sell the property levied upon by him, and deposit the proceeds of such sale in the depository of the said court, subject to the further 689. |