Horace Gray

“ Penal laws, strictly and properly, are those imposing punishment for an offense committed against the state, and which, by the English and American constitutions, the executive of the state has the power to pardon. Statutes giving a private action against the wrongdoer are sometimes spoken of as penal in their nature, but in such cases it has been pointed out that neither the liability imposed nor the remedy given is strictly penal. ”

“ If the foreign law is a penal statute, or if it offends our own policy, or is repugnant to justice or to good morals, or is calculated to injure this state or its citizens, or if we have not jurisdiction of parties who must be brought in to enable us to give a satisfactory remedy, or if, under our forms of procedure, an action here cannot give a substantial remedy, we are at liberty to decline jurisdiction.' 155 Mass. ”

“ 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. ”

“ Justice Bradley, who delivered the opinion in that case, said the year before, when sitting in the circuit court, and speaking of a prosecution in a court of the state of Georgia for perjury committed in that state in testifying before a commissioner of the circuit court of the United States: 'It would be a manifest incongruity for one sovereignty to punish a person for an offense committed against the laws of another sovereignty.' Ex parte Bridges, 2 Woods, 428, 430. ”

“ So in an action given by statute to a traveler injured through a defect in a highway, for double damages against the town, it was held unnecessary to aver that the facts constituted an offense, or to conclude against the form of the statute, because, as Chief Justice Shaw said: 'The action is purely remedial, and has done of the characteristics of a penal prosecution. All damages for neglect or breach of duty operate to a certain extent as punishment; but the distinction is that it is prosecuted for the purpose of punishment, and to deter others from offending in like manner. ”

“ A statute of a state, manifestly intended to protect life, and to impose a new and extraordinary civil liability upon those causing death, by subjecting them to a private action for the pecuniary damages thereby resulting to the family of the deceased, might be enforced in a circuit court of the United States held in another state, without regard to the question whether a similar liability would have attached for a similar cause in that state. ”

“ For the purposes of extraterritorial jurisdiction, it may well be that actions by a common informer, called, as Blackstone says, "popular actions,' because they are given to the people in general,' to recover a penalty imposed by statute for an offense against the law, and which may be barred by a pardon granted before action brought, may stand on the same ground as suits brought for such a penalty in the name of the state or of its officers, because they are equally brought to enforce the criminal law of the state. ”

“ The decisions of the court of appeals of New York, so far as they have been brought to our notice, fall short of holding that the liability imposed upon the officers of the corporation by such statutes is a punishment or penalty which cannot be enforced in another state. ”

“ Within the meaning of a statute of limitations applicable to private actions only, the action against an officer is not 'upon a liability created by statute, other than a penalty or forfeiture,' which would be barred in six years, but is barred in three years as 'an action upon a statute for a penalty or forfeiture where action is given to the party aggrieved,' because the provisions in question, said the court, 'impose a penalty, or a liability in that nature.' Bank v. ”

“ And personal disabilities imposed by the law of a state, as an incident or consequence of a judicial sentence or decree, by way of punishment of an offender, and not for the benefit of any other person,-such as attainder, or infamy, or incompetency of a convict to testify, or disqualification of the guilty party to a cause of divorce for adultery to marry again,-are doubtless strictly penal, and therefore have no extraterritorial operation. ”

“ In order to maintain an action for an injury to the person or to movable property, some courts have held that the wrong must be one which would be actionable by the law of the place where the redress is sought, as well as by the law of the place where the wrong was done. ”

“ In limited liability companies, all the stockholders shall be severally individually liable to the creditors of the company in which they are stockholders, to an amount equal to the amount of stock held by them, respectively, for all debts and contracts made by such company, until the whole amount of capital stock fixed and limited by such company has been jpaid in, and a certificate therefo has been made and recorded as hereinafter prescribed. ”

“ 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 by the present plaintiff against Attrill in the province of Ontario upon the judgment to enforce which the present suit was brought. ”

“ A statute giving the right to recover back money lost at gaming and, if the loser does not sue within a certaintime, authorizing a qui tam action to be brought by any other person for threefold the amount, has been held to be remedial as to the loser, though penal as regards the suit by a common informer. ”

“ 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. ”

“ 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. ”