[to enforce or entertain an action upon a judgment rendered under a penal statute of the latter, that is, statute which is penal in the international sense. Although, as already stated, that was not a case in which an action was brought in one state to enforce a judgment recovered in another, but was a suit originally brought in the United States Supreme Court by the state of Wisconsin against a foreign corporation, to enforce a Wisconsin judgment, the argument by which the court sustained its decision that it would not entertain the action be'cause the judgment was founded on a penal statute was, in statement at least, specifically applied to an action in one state to enforce a judgment rendered in another; and the opinion expressly declares that "the application of the rule [that the courts of one state or country will not enforce the penalties of another] to the courts of other states and of the United States is not affected by the provisions of the Constitution and the act of Congress, by which the judgments of the courts of any state are to have such faith and credit given to them in every court within the United States as they have by law or usage in the state in which they were rendered." court further stated that the only cases cited in the argument which tended to support the view that the courts of one state will maintain an action upon a judgment rendered in another state for a penalty incurred by a violation of her municipal laws are Spencer v. Brockway (1821) 1 Ohio, 259, 13 Am. Dec. 615; Healy v. Root (1833) 11 Pick. (Mass.) 389; and Indiana ex rel. Stone v. Helmer (1866) 21 Iowa, 370; and added that the decision in each of these cases appears to have been mainly based upon the supposed effect of the provisions of the Constitution and act of Congress as to the faith and credit due to a judgment rendered in another state, which had not then received a full exposition from the United States Supreme Court. The Upon the authority of the Pelican Case the Maryland court of appeals in Attrill v. Huntington (1889) 70 Md. 191, 2 L.R.A. 779, 14 Am. St. Rep. 344, 16 Atl. 651, held that an action would not lie in Maryland to enforce a judgment recovered in New York under a statute which the Maryland court characterized as a penal statute. While the judgment in this case was reversed by the United States Supreme Court in (1892) 146 U. S. 657, 36 L. ed. 1123, 13 Sup. Ct. Rep. 224, the reversal was upon the ground that the New York statute under which the judgment involved in that case was rendered was not a penal statute in the international sense and within the general principle above stated. The court clearly assumed throughout that the Maryland court would not have been bound to entertain the action upon the judgment if the statute under which it was rendered had been a penal one in the international sense. The passage above quoted from the Pelican Case, beginning, "The application of the rule," etc., is quoted in the opinion in the Huntington Case as one of the principal propositions affirmed in the Pelican Case. That the court in the Huntington Case did not deny, but, on the other hand, recognized the principle that a court of one state is not bound to enforce a judgment rendered under a penal statute of another, is placed beyond a doubt by the following quotation from the opinion: "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." This view of the Huntington Case is further sustained by the fact that the opinion declares in effect that the criterion adopted by it as to penal laws in an international sense would be binding upon a Federal court even though the action was based, not upon a judgment, but immediately upon the statute of the other state; though conceding that it would not be binding upon the state court in such case, it being binding upon the state court only when the action is brought upon a judgment of the other state. In Andrews v. Andrews (1903) 188 U. S. 14, 47 L. ed. 366, 23 Sup. Ct. Rep. 237, a case on its facts not within the scope of the note, the court, referring to the Pelican Case, said: "This court having concluded that ordinarily a penalty imposed by the laws of one state could have no extraterritorial operation, came then to consider whether, under the due faith and credit clause of the Constitution, a judgment rendered upon a penal statute was entitled to recognition outside of the state in which it had been rendered because the character of the cause of action had been merged in the judgment as such. In declining to enforce a Wisconsin judgment, and in deciding that, notwithstanding the judgment and due faith and credit clause of the Constitution, the power existed to look back of the judgment and ascertain whether the claim which had entered into it was one susceptible of being enforced in another state, the court, speaking through Mr. Justice Gray, said: [Here follows the passage already quoted from the Pelican Case, beginning, "The “The application of the rule,' etc.]" Upon the authority of the Pelican Case and the Huntington Case, it was held in Arkansas v. Bowen (1894) 3 App. D. C. 537, that a court of the District of Columbia was not bound, under the full faith and credit provision, to entertain an action upon a judgment recovered in Arkansas under a penal statute. The case of Interstate Sav. & T. Co. v. Wyatt (1915) 27 Colo. App. 217, 147 Pac. 444, resembles the Huntington Case, as the court, while holding that the statute under which the judgment in question was recovered in the other state was not penal in the sense of the principle that a court of one state or country will not enforce the penal laws of another, and therefore that the action could be maintained on the judgment, declared generally that the rule that the judgment of one state must be given full faith and credit when sued upon in another is subject to the exception that the judgment sued upon in the sister state may be inquired into for the purpose of ascertaining whether the tribunal in which it was obtained had jurisdiction, and whether it was obtained through the enforcement of a penal law of the other state; observing further that it had been held also that its enforcement in a sister state depended upon whether the law upon which it was obtained was repugnant to justice or good morals, or offended the policy of the state in which it was sought to be enforced, or was calculated to injure such state or its citizens. In Roller v. Murray (1912) 71 W. Va. 161, L.R.A.1915F, 984, 76 S. E. 172, Ann. Cas. 1914B, 1139, also the court assumed obiter that the Pelican Case had established an exception in case of a judgment under a statute penal in the international sense within the criterion adopted in Huntington v. Attrill (1892) 146 U. S. 657, 36 L. ed. 1123, 13 Sup. Ct. Rep. 224, supra. In Re Neidnig (1908) 123 App. Div. 894, 108 N. Y. Supp. 478, the court declares generally that there is a wellrecognized exception to the rule that requires full faith and credit to be given to foreign judgments; and that when the judgment is in the nature of a police regulation of the country wherein it was made, it has no extraterritorial force as a judgment. The judgment in this case, however, was rendered in another country, and not in another state, so that the full faith and credit clause of the Federal Constitution did not apply to it. Aside from the earlier cases already cited, which were disapproved in the Pelican Case, apparently the only case which has expressly held that a court of one state was bound to enforce a judgment rendered under a penal statute of another is Schuler v. Schuler (1904) 209 Ill. 522, 71 N. E. 16, where the court declared that when a court of a sister state having jurisdiction of the persons and of the subject-matter has taken cognizance and rendered a judgment in a sum of money for the penalty prescribed or the amoun provided for under a penal statute, a judgment so rendered is entitled to full faith and credit in every other state, and an action may be maintained thereon in another state. The court does not discuss the question, but cites 2 Black on Judgments, 2d ed. §§ 870, 871, which do not appear to support the decision in its broad scope. The prevailing opinion by Mr. Justice Holmes in Fauntleroy v. Lum (1908) 210 U. S. 230, 52 L. ed. 1039, 28 Sup. Ct. Rep. 641, however, not only throws some doubt upon the Pelican Case as authority for the general principle that a court of one state, when called upon to enforce a judgment of another, may go behind the face of the judgment to ascertain if it was rendered upon a cause of action the enforcement of which would have been contrary to the public policy of the former, but also upon its specific application of that principle to judgments rendered under penal statutes. He called attention to the fact, already alluded to, that the Pelican Case did not involve an action in one state upon a judgment recovered in another, but was an original action in the United States Supreme Court by the state of Wisconsin upon a judgment recovered against a foreign corporation for a fine or penalty imposed by the Wisconsin statute upon corporations doing business within the state and failing to make certain returns, and that the ground of the decision was that the original jurisdiction given to the Supreme Court was confined to "controversies of a civil nature," which the judgment in suit was not; and he characterized all that was said on the point in the Pelican Case as a dictum. state, giving to the other party the results of prohibited and criminal acts done in another state, is not entitled to be enforced in the state whose laws have been violated." The dissenting opinion of Mr. Justice White in Fauntleroy v. Lum, however, apparently assumes that the principle under discussion with reference to judgments under penal statutes was established by the Pelican Case, and it is not even overthrown by the majority opinion in the case at bar. He said in this connection: "If a judgment for a penalty in money, rendered in one state, may not be enforced in another, by the same principles a judgment rendered in one Although the question as to what laws are penal in the international sense and within the principle that such laws will not be enforced in another state or country is not within the scope of this note, it may be observed that the strict criterion of penal laws adopted by the United States Supreme Court in Huntington v. Attrill (U. S.) supra, which makes the character of a law in this regard depend 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 wrongful acts," operates practically to confine within somewhat narrow limits the principle that a court of one state may decline to entertain an action upon a judgment recovered under a penal statute in another, even assuming that that principle has not been impaired by the majority opinion in the Fauntleroy Case; since, as pointed out in the Huntington Case, that criterion, although not binding upon the state courts when the action is based immediately upon the statute, is binding upon the state courts when called upon, under the full faith and credit provision of the Federal Constitution, to recognize or enforce a judgment of another state. Another limitation is imposed upon the principle by the statement in the Pelican Case itself: "It is true that if the prosecution in the courts of one country for a violation of its munici pal law is in rem, to obtain a forfeiture of specific property within its jurisdic tion, a judgment of forfeiture, rendered after due notice, and vesting the title of the property in the state, will be recognized and upheld in the courts of any other country in which the title to the property is brought in issue [citing cases]. But the recognition of a vested title in property is quite different from the enforcement of a claim for a pecuniary penalty. (288 Ill. 91, 123 N. E. 306.) Witness prefacing testimony by "I think." 1. A witness who prefaces his testimony by the words "I think" is taken as testifying to what he remembers. [See note on this question beginning on page 979.] APPEAL by complainant from a decree of the Superior Court for Cook County (Sullivan, J.) dismissing a bill filed to set aside the will of his deceased brother. Reversed. The facts are stated in the opinion of the court. Messrs. Edwin F. Abbott and C. Helmer Johnson for appellant. Mr. James H. Wilkerson for appel lees. Duncan, Ch. J., delivered the opinion of the court: This appeal is prosecuted by Edwin F. Abbott, complainant below, in a bill to set aside the will of his brother, George B. Abbott, from a decree dismissing the bill and sustaining the will of the testator. The only ground upon which appellant relied in the court below, and is relying on here, is that the execution of the will was procured through the undue influence of Frank L. Shepard, who was made a beneficiary and one of the executors and trustees in the will. The testator left property valued at approximately $16,000. One thousand dollars of his property was personal property, and the remain der was real estate. By his will he The bill alleged, in substance, that the testator at the time of making his will was ill, and by reason of domestic troubles and of his illness was easily influenced; that the will was prepared by William T. Church and Frank L. Shepard, and under their advice and direction; that they were practising law as partners in Chicago at the time the will was executed, and were the legal and confidential advisers of the testator, and that they took advantage of the confidence he reposed in them and by undue influence procured the alleged will to be executed and whereby they were made the principal beneficiaries thereunder. All charges of undue influence were denied in the answer of appellees. It is disclosed by the evidence that at the time the will of the testator was executed he was fifty-five years of age, and was possessed of a sound mind and of a strong mentality. |
