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court 18 of the opinion that the combination court of appeals of Maryland, which decided so formed was not patentable, because no
against the plaintiff's claim upon the ground
that the New York judgment was for a penalty new result or effect was produced by the
under the New York statute, and therefore united action of the old elements. To sus could not be enforced in Maryland. Two of tain a patent on a combination of old devices, the judges dissented upon the ground that this it is well settled that a new result must be
decision failed to give the New York judgment
full faith and credit, as required by the conobtained, which is due to the joint and co stitution of the United States (article 4, § 1) operating action of all the old elements. El and Rev. St. $ 905. Held, that this decision inther this must be accomplished, or a new ma
volved the determination of a federal question,
and was reviewable by the supreme court of chine of distinct character and function
the United States. Mr. Chief Justice Fuller, must be constructed. Pickering v. McCul dissenting. lough, 104 U. S. 310; Hailes v. Van Wormer,
2. The essential nature and real foundation
of a cause of action are not changed by recover20 Wall. 353; Double-Pointed Tack Co. V.
ing judgment upon it; and the technical rules Two Rivers Manuf'g Co., 9 Biss. 258, 3 Fed. which regard the original claim as merged in Rep. 26; Machine Co. v. Young, 14 Blatchf. the judgment, and the judgment as implying a 46. If several old devices are so put to
promise by the defendant to pay it, do not pre
clude the courts of another state, when the gether as to produce even a better machine
judgment is sought to be enforced therein, from or instrument than was formerly in use, but ascertaining whether the claim is really of such each of the old devices does what it had
a nature as those courts are authorized to en
force. Wisconsin v. Pelican Ins. Co., 8 Sup. formerly done in the instrument or machine
Ct. Rep. 1370, 127 U. S. 265, followed. from which it was borrowed, and in the old 3. The words "penal” and “penalty,". iD way, without uniting with other old devices
their strict and primary sense, denote a punish:
ment, whether corporal or pecuniary, imposed to perform any joint function, it seems that
and enforced by the state for a crime or offense the combination is not patentable. Hailes v. against its laws, and “penal laws," strictly and Van Wormer, supra; Reckendorfer v. Faber, properly, are those imposing punishment for an 92 U. S. 347. In the present case the incline,
offense committed against the state, which the
executive of the state has the power to pardon; when placed in combination with the 'tube, and the expression does not include statutes slot, and slide,' acted precisely as it did when which give a private action against the wrong.
doer. placed in the forward end of a slotted tube
4. The question whether a statute of one not provided with a slide. Its action was in
state, which in some aspects may be called no sense modified by the new relation in penal, is a penal law in the international sense, which it was placed, nor did it, in unison
so that it cannot be enforced in the courts of with the other elements of the combination,
another state, depends upon the question wheth
er its purpose is to punish an offense against produce a distinctively new result. In ac the public justice of the state, or to afford a cordanco with these views the bill is dis private remedy to the person injured by the missed."
5. Laws N. Y. 1875, c. 611, $$ 21, 37, mak
ing the officers of a corporation liable for its J.C. Smith, for appellants. Geo. H. Knight,
debts in case they make any false certificate or for appellee.
report, and also, in the case of limited liability companies, rendering the stockholders liable to
the full amount of the stock held by them, re* Mr. Chief Justice FULLER. Having spectively, for all debts contracted by the comreached the same conclusions as those ex pany, before the whole amount of capital stock pressed in the opinion of the circuit court, re
has been paid in, is cot a penal statute, in the
international sense; so that a judgment recorported in 37 Fed. Rep. 92, we direct the de
ered thereunder cannot be enforced in another cree to be affirmed.
state, and the decision of a court of another state that the judgment is not enforceable there. in is a failure to give such judgment the full
faith and credit required by the constitution of (146 U. S. 677)
the United States (article 4. $ 1) and by Rev. HUNTINGTON V. ATTRILL.
St. $ 905. Mr. Chief Justice Fuller, dissent
In error to the court of appeals of the state
of Maryland. Reversed. SUPREME COURT - JURISDICTION-"PenaL LAWS" -CONSTITUTIONAL LAW.
John K. Cowen, E. J. D. Cross and H. L. 1. Plaintiff recovered a judgment in a court
Bond, for plaintiff in error. S. T. Wallis of New York against defendant upon his personal liability as a director and stockholder in a
and Wm. A. Fisher, for defendant in error. New York Corporation, under the New York statute, (Laws 1875, c. 611, $8 21, 37;) the grounds of liability being that defendant, as a
* Mr. Justice GRAY delivered the opinion of director, made and filed a false certificate that the court. the stock was fully paid in, (in which case the
This was a bill in equity, filed March 21, statute makes him personally liable for all the debts contracted by the corporation while he
1888, in the circuit court of Baltimore city, was an officer thereof,) and that the debt was kiy Collis P. Huntington, a resident of New incurred before the stock was fully paid, in York, against the Equitable Gaslight Com. which case defendant, as a stockholder, was liable to the amount of his stock.) Plaintiff
pany of Baltimore, a corporation of Mary. thereafter brought a bill in a state court of
land, and against IIenry Y. Attrill, his wife Maryland to set aside an alleged fraudulent and three daughters, all residents of Canada, transfer of property by defendant, and to
to set aside a transfer of stock in that comcharge the same with the payment of the New York judgment. This case was taken to the pany made by him for their benefit and in
fraud of his creditors, and to charge that uary 29, 1881, including its debt to the plainstock with the payment of a judgment re tifr. On March 8, 1882, by proceedings in a covered by the plaintiff against him in the court of New York, the corporation was destate of New York, upon his liability as a clared to be insolvent, and to have been so director in a New York corporation, under since July, 1880, and was dissolved. A duly the statute of New York of 1875, (chapter exemplitied copy of the record of that judg611,) the material provisions of which are ment was annexed to and made part of the copied in the margin."
1;ill. The bill alleged that on June 15, 1856, the The bill also alleged that "at the time of plaintiff recovered, in the supreme court of its dissolution, as aforesaid, the said comthe state of New York, in an action brought (pany Wils indebted to the plaintiff and to by him against Attrill on March 21, 1883, a other creditors to an amount far in excess of Judgment for the sum of $100,210, which had its assets; that by the law of the state of liot been prid, secured, or satisfied, and that New York all the stockholders of the comthe cause of action on which that judgment pany were liable to pay all its debts, each to was recovered was as follows: On February the amount of the stock held by him, and 29, 1880, the Rockaway Beach Improvement the defendant, Henry Y. Attrill, was liable Company, Limited, of which Attrill was an at said date, and on April 14, 1882, as such incorporator and a director, became a corpo stockholder, to the amount of $340,000, the ration under the law of New York, with a amount of stock held by him, and was on capital stock of $700,000. On June 15, 1880, both said dates also severally and directly the plaintiff lent that company the sum of liable, as a director, having signed the false $100,000, to be repaid on demand. On Feb report above mentioned, for all the debts of ruary 26, 1880, Attrill was elected one of said company contracted between February the directors of the company, and accepted | 26, 1880, and January 29, 1881, which debts the office, and continued to act as a director aggregate more than the whole value of the until after January 29, 1881. On June 30, property owned by said Attrill.” 1880, Attrill, as a director of the company, * The bill further alleged that Attrill was in signed and made oath to, and caused to be March, 1882, and had ever since remained, recorded, as required by the law of New individually liable in a large amount over York, a certificate, which he knew to be and above the debts for which he was liable false, stating that the whole of the capital as a stockholder and director in the compastock of the corporation had been paid in, ny, and that he was insolvent, and had sewhereas in truth no part had been paid in, creted and concealed all his property for the and by making such false certificate became purpose of defrauding his creditors. liable, by the law of New York, for all the The bill then alleged that in April, 1882, debts of the company contracted before Jan Attrill acquired a large amount of stock in
the Equitable Gaslight Company of Balti*Sec. 21. If any certificate or report made, or more, and forthwith transferred into his own public notice given, by the officers of any such
name, as trustee for his wife, 1,000 shares of corporation, shall be false in any material representation, all the officers who shall have
such stock, and, as trustee for each of his signed the same shall be jointly and severally three daughters, 250 shares of the same, liable for all the debts of the corporation con without valuable consideration, and with in. tracted while they are officers thereof. Sec. 37. In limited liability companies, all
tent to delay, hinder, and defraud his credit. the stockholders shall be sererally individually ors, and especially with the intent to delay, liable to the creditors of the company in which hinder, and defraud this plaintiff of his lawful they are stockholders, to an amount equal to the amount of stock held by them, respective
suits, damages, debts, and demands against ly, for all debts and contracts made by such Attrill, arising out of the cause of action on company, until the whole amount of capital which the aforesaid judgment was recovered, stock fixed and limited by such company has
and out of the plaintiff's clain against him as been paid in, and a certificate thereof has been made and recorded as hereinafter prescribed.
a stockholder; that the plaintiff in June, 1880, The capital stock of every such limit and ever since, was domiciled and resident ed liability company shall be paid in, one half in the state of New York, and that from Febthereof within one year, and the other half thereof within two years, from the incorpora
ruary, 1880, to December 6, 1884, Attrill was tion of said company, or such corporation shall domiciled and resident in that state, and that be dissolved. The directors of every such his transfers of stock in the gas company company within thirty days after the payment
were made in the city of New York, where of the last installment of the capital stock, shall inake a certificate stating the amount of
the principal office of the company then was, the capital so paid in, which certificate shall and where all its transfers of stock were be signed and sworn to by the president and a made; and that those transfers were, by the majority of the directors; and they shall, within the said thirty days, record the same in the
Jaws of New York, as well as by those of office of the secretary of state, and of the coun Maryland, fraudulept and roid as against the ty in which the principal business office of such
creditors of Attrill, including the creditors of corporation is situated. Sec. 38. The dissolution, for any cause what
the Rockaway Company, and were frauduerer, of any corporation created as aforesaid, lent and void as against the plaintiff. shall not take away or impair any remedy given The bill further, by distinct allegations, against such corporation, its stockholders or of
averred that those transfers, unless set aside ficers, for any liabilities incurred previous to its dissolution.
and annulled by a court of equity, would de v.13s.C.-15
prive the plaintiff of all his rights and inter essential nature and real foundation" the ests of every sort therein, to which he was same as the original cause of action, and entitled as a creditor of Attrill at the time therefore a suit could not be maintained upon when those fraudulent transfers were made, such a judgment beyond the limits of the and “that the said fraudulent transfers were state in which it was rendered. Pages 193– wholly without legal consideration, were 198, 70 Md., and pages 653, 654, 16 Atl. Rep. fraudulent and void, and should be set aside The court then took up the clause of the by a court of equity."
bill, above quoted, in which it was sought to The bill prayed that the transfer of shares charge Attrill as originally liable under the in the gas company be declared fraudulent statute of New York, both as a stockholder and void, and executed for the purpose of and as a director, and, observing that “this defrauding the plaintiff out of his claim as liability is asserted to exist independently of existing creditor; that the certificates of the judgment,” summarily disposed of it, upthose shares in the name of Attrill as trustee on the grounds that it could not attach to be ordered to be brought into court and can him as a stockholder, because he had not celed; and that the shares "be decreed to be been sued, as required by the New York statsubject to the claim of this plaintiff on the ute, within two years after the plaintiff's judgment aforesaid," and to be sold by a debt. became due, nor as a director, because trustee appointed by the court, and new cer “the judgment against Attrill for having tificates issued by the gas company to the made the false report certaivly merges all purchasers, and for further relief.
right of action against him on this account," One of the daughters demurred to the bill but that, if he was liable at the times and on because it showed that the plaintiff's claim the grounds "mentioned in this clause of the was for the recovery of a penalty against bill,” this liability was barred by the statute Attrill arising under a statute of the state of of limitations of Maryland. Pages 198, 199, New York, and because it did not state a case 70 Md., and page 654, 16 Atl. Rep. which entitled the plaintiff to any relief in a Having thus decided against the plaintiff's court of equity in the state of Maryland. claim under his judgment, upon the single
By a stipulation of counsel, filed in the ground that it was for a penalty under the cause, it was agreed that, for the purposes of statute of New York, and therefore could not the demurrer, the bill should be treated as be enforced in Maryland, and against any embodying the New York statute of June 21, original liability under the statute, for va1875; and that the Rockaway Beach Im rious reasons, the opinion concluded: “Upon provement Company, Limited, was incorpo the whole, it appears to us that the complain. rated under the provisions of that statute. ant has no cause of action which he can main
The circuit court of Baltimore city over tain in this state." Page 199, 70 Nd., and ruled the demurrer. On appeal to the court page 654, 16 Atl. Rep. of appeals of the state of Maryland, the or Judge Stone, with whom Judge McSherry der was reversed, and the bill dismissed. 70 ccncurred, dissented from the opinion of the ud. 191, 16 Atl. Rep. 651.
majority of the court, upon the ground that The ground most prominently brought for it did not give due effect to the act of conward and most fully discussed in the opinion gress passed in pursuance of the constitution of the majority of the court, delivered by of the United States, and providing that the Judge Bryan, was that the liability imposed records of judgments rendered by a court by section 21 of the statute of New York up- of any state shall have such faith and credit on officers of a corporation, making a false given to them in every court within the certificate of its condition, was for all its | United States as they have by law or usage debts, without inquiring whether a creditor in the courts of the state whence they are had been deceived and induced by deception taken. Act May 26, 1790, c. 11, (1 St. p. 122;.. to lend his money or to give credit, or wheth- Rev. St.* & 905.) He began his opinion by er he had incurred loss to any extent by the saying: “I look upon the principal point as a inability of the corporation to pay, and with federal question, and am governed in my out limiting the recovery to the amount of views more by my understanding of the de. loss sustained, and was intended as a pun. cisions of the supreme court of the United ishment for doing any of the forbidden acts, States than by the decisions of the state and was, therefore, in view of the decisions courts." And he concluded thus: “I think in that state and in Maryland, a penalty the supreme court, in 127 U. S. 263, 8 Sup. Ct. which could not be enforced in the state of Rep. 1370, meant to confine the operation of Maryland; and that the judgment obtained in the rule that no country will execute the New York for this penalty, while it “merged renal laws of another to such laws as are the original cause of action so that a suit properly classed as criminal. It is not very cannot be again maintained upon it," and " is easy to give any brief definition of a criminal also conclusive evidence of its existence in the law. It may perhaps be enough to say that, form and under the circumstances stated in in general, all breaches of duty that confer the pleadings,” yet did not change the nature 110 rights upon an individual or person, and of the transaction, but, within the decision of which the state alone can take cognizance of, this court in Wisconsin v. Insurance Co., 127 are in their nature criminal, and that all such U. 8. 265, 8 Sup. Ct. Rep. 1370, was in its come within the rule. But laws which,
while imposing a duty, at the same tine con 307, 311; Crapo v. Kelly, 16 Wall. 610, 619; fer a right upon the citizens to claim damages Dupasseur v. Rochereau, 21 Wall. 130, 134; for its nonperformance, are not criminal. If Crescent City Livestock Co. v. Butchers' Un. all the laws of the latter description are held ion Slaughter-House Co., 120 U. S. 141, 146, penal, in the sense of criminal, that clause 147, 7 Sup. Ct. Rep. 472; Cole v. Cunning. in the constitution which relates to records ham, 133 U. S. 107, 10 Sup. Ct. Rep. 269; and judgments is of comparatively little Carpenter v. Strange, 141 U. S. 87, 103, 11 value. There is a large and constantly in Sup. Ct. Rep. 960. creasing number of cases that may in one In order to determine this question, it will sense be termed penal, but can in no sense be be necessary, in the tirst place, to consider classed as criminal. Examples of these may the true scope and meaning of the fundabe found in suits for damages for negligence mental maxim of international law stated by in causing death, for double damages for the Chief Justice Marshall in the fewest possible injury to stock where railroads have neglect words: “The courts of no country execute ed the state laws for fencing in their tracks, the penal laws of another." The Antelope, and the liability of officers of corporations 10 Wheat. 66, 123. In interpreting this maxfor the debts of the company by reason of im, there is danger of being misled by the diftheir neglect of a plain duty imposed by stat ferent shades of meaning allowed to the ute. I cannot think that judgments on such word “penal" in our language. elaims are not within the protection given by In the municipal law of England and Amer? the constitution of the United States. ica, the words *** penal" and "penalty have* therefore think the order in this case should been used in various senses. Strictly and be affirmed." Pages 200--205, 70 Md., and primarily, they denote punishment, whether pages 654-656, 16 Atl. Rep.
corporal or pecuniary, imposed and enforced A writ of error was sued out by the plain- | by the state for a crime or offense against tiff, and allowed by the chief justice of the its laws. U. S. v. Reisinger, 128 U. S. 398, court of appeals of Maryland, upon the 402, 9 Sup. Ct. Rep. 99; U. S. v. Chouteau, 102 ground “that the said court of appeals is the U. S. 603, 611. But they are also commonly nighest court of law or equity in the state of used as including any extraordinary liability Maryland, in which a decision in the said suit to which the law subjects a wrongdoer in facould be had; that in said suit a right and vor of the person wronged, not limited to the privilege are claimed under the constitution damages suffered. They are so elastic in and statutes of the United States, and the de meaning as even to be familiarly applied to cision is against the right and privilege set up cases of private contracts, wholly independ. and claimed by your petitioner *under said ent of statutes, as when we speak of the constitution and statutes; and that in said “penal sum or “penalty" of a bond. In the suit there is drawn in question the validity of words of Chief Justice Marshall: “In gena statute of, and an authority exercised un eral, a sum of money in gross, to be paid for der, the United States, and the decision is the nonperformance of an agreement, is conagainst the validity of such statute and of sidered as a pevalty, the legal operation of such authority."
which is to cover the damages which the It thus appears that the judgment recor party in whose favor the stipulation is made ered in New York was made the foremost may have sustained from the breach of conground of the bill, was fully discussed and tract by the opposite party." Tayloe v. Sanddistinctly passed upon by the majority of the Iford, 7 Whcat. 13, 17. court of appeals of Maryland, and was the Penal laws, strictly and properly, are only subject of the dissenting opinion; and those imposing punishment for an offenso that the court, without considering whether committed against the state, and which, by the validity of the transfers impeached as the English and American constitutions, the fraudulent was to be governed by the law of cxecutive of the state has the power to par New York or by the law of Maryland, and don. Statutes giving a private action against without a suggestion that those transfers al the wrongdoer are sometimes spoken of as leged to have been made by Attrill with in penal in their nature, but in such cases it has tent to delay, hinder, and defraud all his been pointed out that neither the liability creditors were not voidable by subsequent as imposed nor the remedy given is strictly well as by existing creditors, or that they penal. could not be avoided by the plaintiff, claiming The action of an owner of property against under the judgment recovered by him against the hundred to recover damages caused by a Attrill after those transfers were made, de mob was said by Justices Willes and Buller to clined to maintain his right to do so by virtue be “penal against the hundred, but certainly of that judgment, simply because the judg- remedial as to the sufferer.” Hyde v. Cogan, ment had, as the court held, been recovered 2 Doug. 699, 705, 106. A statute giving the in another state, in an action for a penalty. right to recover back money lost at gaming
The question whether due faith and credit and, if the loser does not sue within a certai. were thereby denied to the judgment ren time, authorizing a qui tam action to b* dered in another state is a federal question, brought by any other person for threefola of which this court has jurisdiction on this the amount, has been held to be remedial as writ of error. Green v. Van Buskirk, 5 Wall. to the loser, though penal as regards the suit
by a common informer. Bones v. Booth, 2 Grey, as reported by Sir William Blackstone: W. Bl. 1226; Brandon v. Pate, 2 H. Bl. 308; “Crimes are in their nature local, and the juGrace y. McElroy, 1 Allen, 563; Read v. risdiction of crimes is local. And so as to the Stewart, 129 Mass. 407, 410; Cole v. Groves, rights of real property, the subject being 134 Mass. 471. As said "by Mr. Justice Ash fixed and immovable. But personal injuries hurst in the king's bench, and repeated by are of a transitory nature, and sequuntur Mr. Justice Wilde in the supreme judicial forum rei." Rafael v. Verelst, 2 W. Bl. 1055, court of Massachusetts, "it has been held 1058. in many instances that, where a statute Crimes and offenses against the laws of gives accumulative damages to the party any state can only be defined, prosecuted. grieved, it is not a penal action." Woodgate and pardoned by the sovereign authority of v. Knatchbull, 2 Term R. 148, 154; Read v. that state; and the authorities, legislative, Chelmsford, 16 Pick. 128, 132. Thus a stat executive, or judicial, of other states take no ute giving to a tenant, ousted without notice, action with regard to them, except by way of double the yearly value of the premises extradition, to surrender offenders to the against the landlord, has been held to be state whose laws they have violated, and “not like a penal law, where a punishment whose peace they have broken. is imposed for a crime,” but “rather as a Proceedings in rem to determine the title remedial than a penal law," because “the act to land must necessarily be brought in the indeed does give a penalty, but it is to the state within whose borders the land is sitparty grieved." Lake v. Smith, 1 Bos. & uated, and whose courts and officers alono P. (N. R.) 174, 179, 180, 181; Wilkinson v. can put the party in possession. Whether Colley, 5 Burrows, 2694, 2658. So in an ac actions to recover pecuni.try damages for tion given by statute to a traveler injured trespasses to real estate, "of which the through a defect in a highway, for double causes," as observed by Mr. Westlake, (Priv. damages against the town, it was held un Int. Law, [3d Ed.) p. 213,) “could not have ocnecessary to aver that the facts constituted curred elsewhere than where they did occur," an offense, or to conclude against the form of are purely local, or may be brought abroad, the statute, because, as Chief Justice Shaw depends upon the question whether they are said: The action is purely remedial, and viewed as relating to the real estate, or only has none of the characteristics of a penal as affording a personal remedy. By the com. prosecution. All damages for neglect or mon law of England, adopted in most of the breach of duty operate to a certain extent as states of the Union, such actions are regarded punishunent; but the distinction is that it is as local, and cau be brought only where the prosecuted for the purpose of punishment, land is situated. Doulson v. Matthews, 4 and to deter others from offending in like Term R. 503; Mckenna v. Fisk, 1 How. 241, manner. Here the plaintiff sets out the lia 248. But in some states and countries they bility of the town to repair, and an injury to are regarded as transitory, like other personal bimself from a failure to perform that duty. actions; and whether an action for trespass The law gives him enhanced damages; but to land in one state can be brought in an. still they are recoverable to his own use, and other state depends on the view which the in form and substance the suit calls for in latter state takes of the nature of the action. demnity. Reed v. Northfield, 13 Pick. 91, For instance, Chief Justice Marshall hold that 100, 101.
an action could not be maintained in Virginia, The test whether a law is penal, in the hy whose law it was local, for a trespass to strict and primary sense, is whether the land in New Orleans. Livingston v. Jeffer. wrong sought to be redressed is a wrong to son, 1 Brock. 203. On the other hand, an acthe public or a wrong to the individual, ac tion for a trespass to land in Illinois, where cording to the familiar classification of Black the rule of the common law prevailed, was stone: “Wrongs are divisible into two sorts maintained in Louisiana; Chief Justice Eustis or species: private wrongs and public wrongs. saying: "The present action is, under our The former are an infringement or privation laws, a personal action, and is not distinof the private or civil rights belonging to in guished from any ordinary civil action as to dividuals, considered as individuals, and are the place or tribunal in which it may be thereupon frequently termed 'civil injuries;' brought." Holmes v. Barclay, 4 La. Ann. 63. the latter are a breach and violation of public And in a very recent English case, in which rights and duties, which effect the whole the judges differed in opinion upon the quescommunity, considered as a community, and tion whether, since local venue has been abolare distinguished by the harsher appellation | ished in England, an action can be mainof 'crimes and misdemeanors.'" 3 BI. tained there for a trespass to land in a forComm. 2.
eign country, all agreed that this question deLaws have no force of themselves beyond pended on the law of England. Companhia the jurisdiction of the state which enacts de Mocambique v. British South Africa Co., them, and can have extraterritorial effect (1892] 2 Q. B. 358. See, also, Cragin v. Lovonly by the comity of other states.
ell, 88 N. Y. 258; Allin v. Lumber Co., 150 eral rules of international comity upon this Mass. 560, 23 N. E. Rep. 581. subject were well summed up, before the In order to maintain an action for an inAmerican Revolution, by Chief Justice De l jury to the person or to movable property,