not be had against the director in a foreign State. But if the liability is penal, the ob ligation is not to be enforced outside the State which created it. In the State courts the question, what is a penal obligation, appears to be well settled. If the directors' obligation formed part of the original contract, and is given the creditor to prevent his personally suffering a loss of his claim because of some misconduct of the director, it is remedial, and may be enforced in any State. Such a statute as that making the directors liable for debts contracted in excess of the capital stock creates a liability which may be enforced in any State.1 "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."2 If on the other hand the liability is imposed upon the director as a punishment for not doing his duty, as for instance, for failure to file a report or for misrepresentation con tained in such report, and enures to the bene fit of the creditor without regard to the credi tor's injury or even to the time of contract ing the debt—if in short, the liability is im posed for some act or neglect in ho way con nected with the contracting of the debt, the obligation is a penal one. and cannot be en forced in a foreign State.8 To the same effect are decisions of the courts that liability of the sort just de1 Field v. Haines, 28 Fed. 919; Neal v. Moultrie, 12 Ga. 104; ex parte Van Riper, 20 Wend. 614; Farr v. Briggs, 72 Vt. 225.
- Tyler, J., in Farr v. Briggs, 72 Vt. 225.
3 Flash -v. Conn, 109 U. S. 371 {semble}; Mitchell -<•. Hotchkiss, 48 Conn. 9; Diversey v. Smith, 103 Ill. 378; Halsey j'. McLean, 12 All. 438; Uerrickson -.•. Smith, 3 Dutch. 166; Woods v. Wicks, 7 Lea 40: Stephens r. Fox, 83 N. Y. 313. On this ground enforcement of the director's liability in a foreign State was refused in First Nat. Bank r. Price, 33 Md. 487, though in that case the liability would seem to have been purely remedial.
scribed is penal, and therefore does not sur vive,* and that a judgment obtained against the corporation in an action on the contract is res inter olios, and cannot be shown in an action against the director.6 The Supreme Court of the United States, however, has taken a different view of this question. It has expressed the opinion that no obligation will be refused enforcement as penal in a foreign State unless it arises out of the commission of a crime." In this opinion Mr. Justice Gray followed the reasoning of the English Privy Council on a Canadian ap peal,7 and held that the statutory liability of a director for filing a false return is not penal, but- may be enforced by a creditor by an action brought in a foreign State. In support of this doctrine no authority quite in point was cited except the decision of the Privy Council; nor is it believed that at that time any such authority existed. The cases in State courts holding such obligations penal were cited without attempting to dis tinguish them. The court in support of its view referred to several cases (previously cited in this article) where the. remedy was clearly remedial; and to a few cases in which it is difficult to discover how the question under consideration was in any way involved. The view expressed in the case cannot be regarded as sound in prin ciple. This doctrine was not necessary to the de cision of the case before the court, either in the Privy Council or in the Supreme Court of the United States. In both cases the ques tion was whether action could be brought in a foreign State upon a judgment obtained against the director in the State of charter. 4 Fisher 11. Graves, 80 Fed. 590; Stokes v. Stickney, 96 N. Y. 323. • s Chase v. Curtis, 113 U. S. 452; Miller r. White, 50 N. Y. 137; Whitney Arms Co. ». Barlow, 63 N. Y. 62. 6 Huntington ». Attrill, 146 U. S. 657. 7 Huntington ». Attrill [1893] A. C. 150, reversing S. C. 17 Ont. 245, 18 Ont. App. 136.
