in the contract reads "Mares must be returned regularly for trial." It was the duty of the plaintiff to return his mare regularly for trial, at suitable times, if in heat, that she might be served by Cobden. The testimony of the defendant shows that the mare was regularly returned so long as Cobden lived. The defendant contends that upon the death of Cobden it was the plaintiff's duty to return the mare to another of the defendant's horses, by force of a clause on page five of the catalogue which reads, "In case of the death or sale of either stallion, patrons of such horse may use any other horse by paying such difference in service fee as may exist." This clause did not bind the plaintiff to return his mare to any other of the defendant's horses. It was optional with him to do so; if he did not choose to avail himself of the privilege, he could stand upon the contract disregarding his right to return the mare to another horse. The plaintiff, therefore, fulfilled the contract on his part, by regularly returning the mare to Cobden so long as Cobden lived. He was under no duty to return her to another horse. It is urged on behalf of the defendant that his testimony tended to show that the warranty was nothing more than that the plaintiff had the right to return the mare to the defendant's horse in the season of 1891 if she did not become with foal in 1890. But the defendant chose to stand upon the contract as expressed in the catalogue, and it is not permissible for him now to insist upon any parol variation of it that his testimony might have tended to show. As we hold that under the contract the plaintiff was not bound to return his mare to any horse but Cobden, the death of the latter made it impossible for the defendant to perform his warranty. If the return privilege was a part of the contract, the defendant, Cobden being dead, could not perform on his part and as he had warranted the plaintiff a foal, and his contract having wholly failed, there was no consideration for his retaining the plaintiff's money. Nothing re

mained for him to do but to pay over the money to the plaintiff. Under such circumstances general assumpsit was a proper action for the plaintiff to bring to recover the money he had paid the defendant.

Judgment affirmed.

MINNIE L. ADAMS, ADMX.,

V.

FITCHBURG RAILROAD CO.

Penal statute.

I.

2.

MAY TERM, 1894.

Massachusetts act assessing damages for

death from negligence of railroad corporation is.

No action can be maintained in this jurisdiction upon the penal statute of another state.

Chap. 112. sec. 212, Pub. St. Mass., providing that if a person is killed by the negligence of a railroad corporation in the operation of its railroad, it shall be liable in damages to the amount of not less than five hundred dollars nor more than five thousand dollars, to be assessed with reference to the culpability of the corporation, and to be recovered in an action by the administrator or executor of the deceased person for the benefit of the widow and next of kin, is penal.

Action on the case. Heard upon demurrer to the plaintiff's declaration, at the March term, 1894, Windham county,

Ross, C. J., presiding. Judgment sustaining the demurrer, and for the defendant. The plaintiff excepts.

The plaintiff brought suit as the administrator of one L. C. Adams, alleging that the defendant was a railroad corporation operating a railroad in the state of Massachusetts, and that her intestate, while a passenger upon said railroad in that state, had been killed by the negligence of the defendant, and without fault upon his part, and that she thereby became entitled to an action in virtue of chap. 112, S. 212, of the Public Statutes of Massachusetts, which she alleged was in substance as follows:

"If by reason of negligence or carelessness of a corporation operating a railroad or street railway, or the unfitness or gross negligence or carelessness of its servants or agents while engaged in its business, the life of a passenger or of a person being in the exercise of due diligence and not a passenger or in the employment of such corporation is lost, the corporation shall be punished by fine of not less than five hundred dollars or more than five thousand dollars, to be recovered by indictment prosecuted within one year from the time of the injury causing the death, and paid to the executor or administrator for the use of the widow and children of the deceased in equal moieties; or if there are no children to the use of the widow, or if no widow to the use of the next of kin; but a corporation operating a railroad shall not be so liable for the loss of life by a person while walking or being upon its road contrary to law or to the reasonable rules and regulations of the corporation. If the corporation is a railroad corporation it shall also be liable in damages not exceeding five thousand dollars nor less than five hundred dollars, to be assessed with reference to the degree of culpability of the corporation or its servants or agents, and to be recovered in an action of tort commenced within one year from the injury causing the death by the executor or administrator of the deceased person for the use of the persons hereinbefore specified in a case of indictment."

Waterman, Martin & Hitt for the plaintiff.

The right of action in this case was transitory, and the

action might be maintained wherever jurisdiction of the defendant could be had. Rofaal v. Verelst, 2 W. Bl. 983, 1055; Scott v. Seymour, 1 H. & C. 219; Madrazo v. Willis, 3 Barn. & Ad. 284; Mostyn v. Fabrigas, Coup. 161; De la Vaga v. Vana, 1 Barn. & Ad. 284.

Statutes of this kind can be enforced in any state whose policy is not opposed to a recovery of this sort. Dennick v. Railroad Co., 103 U. S. 11; Bissel v. Michigan Rd. Co., 22 N. Y. 258; McCormick v. Penn. Rd. Co., 11 Hun. 182; Stallknecht v. Penn. Rd. Co., 13 Hun. 451; Great Western Ry. Co. v. Miller, 19 Mich. 305; Selnea, etc. Rd. Co. v. Lacy, 43 Ga. 461.

The statute giving the right of action need not be the same in the state where the injury occurs and that where the suit is brought. It is enough if there is a statute in the state where the injury occurs giving compensatory damages and in the state where the suit is brought recognizing the same right. Higgins v. Cen. New Eng. etc. Rd. Co., 155 Mass. 176; Richardson v. New York Cen. Rd. Co., 98 Mass. 85; Nelson, Admr., v. Chesapeake and Ohio Rd. Co., 54 Am. & Eng. R. R. Cas. 82.

Batchelder & Bates for the defendant.

The Massachusetts statute is plainly a penal one. The amount of recovery is in no case less than five hundred dollars, and anything in excess of that sum is made dependent upon the degree of culpability. The statute being penal, no action will lie in this jurisdiction. Richardson, Admr., v. New York Cen. Rd. Co., 98 Mass. 85; Halsey v. McLeon, 94 Mass. 439; Bettys v. Milwaukee & St. Paul Rd. Co., 37 Wis. 323; Herrick v. Railroad Co., 11 Am. & Eng. Ry. Cas., 156; Bank v. Price, 3 Am. Rep. 204; Lawyer v. Smith, 1 Denio 207; Davis v. Railroad Co., 43 Mass. 301; Higgins v. Railroad Co., 155 Mass. 176; Hubbell v.

Gale, 3 Vt. 266; Legallee v. Blaisdell, 134 Mass. 473; White v. Comstock, 6 Vt. 405; Keyes v. Prescott, 32 Vt. 86; Edwards v. Osgood, 33 Vt. 224; Ryker v. Hooper, 35 Vt. 457.

MUNSON, J. The plaintiff claims to recover by virtue of the provisions of a public statute of Massachusetts. The suit cannot be maintained if the statute declared upon is held to be penal. Blaine v. Curtis, 59 Vt. 120. So far as we are informed by counsel or have been able to ascertain by examination, no construction has been placed upon this statute by the Massachusetts court. It thus becomes necessary for us to give to the statute our own interpretation. Its provisions are different from those of any other statute to which our attention has been called. It is not free from expressions which in themselves would characterize a statute as remedial rather than penal. The defendant is made liable in damages, and the ascertainment of the amount is characterized as an assessment. It is certain, however, that the designation of the recovery as damages or as a forfeiture is not conclusive as to the character of the statute. A statute giving a right of recovery is often penal as to one party and remedial as to the other. It is said that in such cases the true test is whether the main purpose of the statute is the giving of compensation for an injury sustained, or the infliction of a punishment upon the wrongdoer. We think an application of this test to the provision in question shows it to be penal. The foundation of the action is the loss of a life by reason of the defendant's negligence. There was no right of action at common law. This statute gives right of action to the personal representative of the deceased, for the benefit of the widow and children, or widow, or next of kin. If the right of recovery is established, the damages are to be five hundred dollars in any event. Any recovery beyond