enforced out of the limits of New Hampshire? This must depend on the nature of the liability and the manner in which it is created. It is not a responsibility ex contractu. And the question arises, is it a liability imposed by the statute upon a person receiving illegal interest for a violation of its provisions and penal in its nature, or is it a statute declaratory of a common-law right and a means or way enacted for enforcing it, and, therefore, remedial in its nature?

If it only gave a remedy for an injury against the person by whom it is committed to the person injured, and limited the recovery to the mere amount of loss sustained, or to cumulative damages as compensation for the injury sustained, it would fall within the class of remedial statutes. 1 BI. Com. 86; 1 B. & P. N. R. 179–180; 2 T. R. 154 and 155, note; 3 Saund. 376, note 7; 1 Salk. 206; Boice v. Gibbons, 8 N. J. L. 324; Burnett v. Ward, 42 Vt. 80. But this statute does not limit the recovery to the mere amount of the loss sustained, or to cumulative damages as compensation; it goes beyond and inflicts a punishment upon the offender. It makes the taking of illegal interest an offense and prescribes a penalty of three times the amount of illegal interest taken. The right of action under it does not arise out of any privity existing between the person paying and the person receiving the illegal interest, but is derived entirely from the statute. The action given is not to recover back money that the person receiving had no lawful right to take and hold against the person paying it, but one to recover a penalty for a breach of a statute law and founded entirely upon the statute imposing the forfeiture. It was held in Hubbell v. Gale, 3 Vt. 266, that whatever may be the form of the action if it is founded entirely upon a statute, and the object of it is to recover a penalty or forfeiture, it is a penal action. We think the liability created by the statute declared upon is clearly a statutory one, imposed upon the person receiving illegal interest as a wrong-doer, and penal in its nature. This view is supported by the decisions of many courts of last resort, some of which have been cited in the argument. We refer, however, only to a decision of the supreme court of the United States in a case analogons to the case at bar. The provisions of the act in question are similar to the provisions of the national currency act of congress, approved June 3, 1864, which provides that if unlawful interest is received by any banking association created by it, the person or persons paying the same or their legal representatives may recover back in an action of debt twice the amount of interest thus paid from the association taking or receiving the same. This provision of the currency act referred to came up for consideration by the supreme court of the United States in the case of Barnet v. Nat. Bank, 98 U. S. 555, where the plaintiff in error sought to avail himself of the benefit of the act in his defense by way of offset and counter-claim to the bill of exchange on which the suit was brought. Justice SWAYNE, in delivering the opinion of the court, denied the relief sought and said: "The remedy given by the statute for the wrong is a penal suit. To that the party aggrieved or his legal representative must resort. He can have redress in no other mode or form of procedure. The statute which gives the right prescribes the redress. The suit must be brought especially to recover the

penalty where the sole question is the guilt or innocence of the accused."

This statute has been repeatedly under consideration by the supreme court of the State of New Hampshire and has been by that court invariably treated as a penal statute. Harper v. Bowman, 3 N. H. 489, was an action to recover a forfeiture of three times the illegal interest paid; it was objected that some part of the penalty was barred by the statute of limitations, and the court, in considering the question, held that the act limiting suits on penal statutes which provided that actions upon any penal statute shall be brought within one year from the time of committing the offense, was controlling in the decision of the question

raised.

In Kempton v. Savings Institution, 53 N. H. 581, the court treated the statute as a penal one, in an able opinion upon its construction and rules of pleading applicable to actions brought upon it.

This construction which has been given to the statute by the supreme court of the State in which it was enacted, treating and holding it a penal statute, should be followed, and is controlling in courts of this State. Hunt v. Hunt, 72 N. Y. 217; S. C., 28 Am. Rep. 129; Leonard v. Steam Nav. Co., 84 N. Y. 48; S. C., 38 Am. Rep. 257.

It is well settled that no State will enforce penalties imposed by the laws of another State. Such laws are universally considered as having no extra-territorial operation or effect, whether the penalty be to the public or to persons. They are strictly local, and effect nothing more than they can reach within the limits of the State in which they were enacted. They cannot be enforced in the courts of another State either by force of the statute, nor upon the principles of State comity. Story Confl. Laws, $$ 620-621; Rorer Interstate Law, 148, 165; Ogden v. Folliot, 3 T. R. 733; Scoville v. Canfield, 14 Johns. 338; S. C., 7 Am. Dec. 467; First Nat. Bank of Plymouth v. Price, 33 Md. 487; Der rickson v. Smith, 27 N. J. L. 166; Barnes v. Whitaker, 22 Ill. 606; Sherman v. Gassett, 9 id. 521; Henry v. Sargeant, 13 N. H. 321; S. C., 40 Am. Dec. 146; Slack v. Gibbs, 14 Vt. 357.

Actions for the recovery of a penalty or forfeiture given by laws of one State upon usurious contracts made and entered into in such State will not lie in another State. Such laws are held to be penal in their nature and governed by the general rule that they have no extra-territorial force and can be enforced only by the courts of the State in which they are enacted. Rorer Interstate Law, 165; Barnes v. Whitaker, 22 Ill. 606; Sherman v. Gassett, 9 id. 521.

The judgment of the county court sustaining the demurrer and adjudging the declaration insufficient was correct and is affirmed.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

FARREN V. OLD COLONY RAILROAD CO.

January 5, 1887.

MASTER AND SERVANT-NEGLIGENCE.

When an employee is called upon by his foreman to assist in a work outside of the work which he was employed to do, and in a place where he had not before done such work, involving perils not known to him, and which, in the exercise of due care, he was not bound to foresee, he cannot be held, as matter of law, to have assumed the risk.

Action of tort to recover for injuries sustained by the plaintiff on defendants' premises by the crushing of the plaintiff between a coal car and the brick outer wall of a building in close proximity to the track on which the car was moving. The plaintiff in his declaration alleged that he was in the employment of the defendant as a blacksmith; that while in such employment, but not in the line of his service as a blacksmith, he was directed by the company to assist in propelling by hand certain freight cars along certain tracks of the company in Taunton; that said tracks were constructed and located in an unsuitable, unsafe and dangerous manner, and in such proximity to a brick building, belonging to said company, as to be in an unsafe and dangerous condition; that by reason of said defects in the construction and location of said tracks, the plaintiff, being in the exercise of due care while acting under the direction of said company, and while not in the line of his service and employment as a blacksmith, was severely and permanently injured by being crushed between the car and brick building. The answer was a general denial.

“Was

At the trial in the superior court the plaintiff testified: employed by the defendant in blacksmithing and general forging, and not for outside yard work, or the moving of cars." His course of travel in coming to and going from his work, and while he was at his work was in another direction from the place where the injury occurred. On Saturday, January 20, 1883, he went as usual to his work. About eight o'clock in the morning, Mr. Hopkins, foreman of the room of the blacksmith shop and forging department, came in and said: "All hands out to move a car." There was a general start of all hands; the plaintiff went out; the car was at that time just in front of the door; the forward end of the car may have been three feet past the left-hand side of the door; it was chilly, and the plaintiff went back to get his coat, and returned as soon as he could; just as he went out of the door the car had just begun to move; he fell into line on the side next to the door; Frost stood behind him, Dunbar at his head, before him; some were at the end of the car pushing, others scattered around; the car began to move slowly; it got under pretty good headway; the first thing he observed, Dunbar, the man before him, dropped to the ground under the car; he thought it a funny proceeding, and looked and saw where he was, and the danger he was in; it crossed his mind that he could not go under there among the wheels; he would stop where

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he was; he had pushed as far as he could; he thought he would get another hold; when he came back one of the stake pockets of the car, which was at his shoulder, struck him on the shoulder, drove him ahead a step or two; the stake iron took him on his right shoulder, and knocked him ahead, and up against the side of the building, and the car as it moved rolled him along, and he was fast there; in order to get him out they were obliged to move the car; the car was rolled back and he dropped to the ground; the witness also testified to his condition as a result of the injury."

In the cross-examination he testified that he went out when Mr. Hopkins called, because it was a general call for all hands; that he had previously been at another place upon call on the west side of the shop to shove a car, so that teams could pass- men go out and in that way to do whatever is necessary; that he looked at the car as he went out, and looked ahead when he started to push it. No one told him where to take hold of the car. He could not tell how many times he had crossed the track at the place of the injury. Had been at the shop from 1876 to 1883; was accustomed to go in and out of the doors. He never refused to go out when called, although he entered protests. He saw the wall of the building, the side of the car and the space between the two.

The plaintiff's evidence was corroborated by the testimony of witnesses who helped in moving the car, and others.

Lemuel L. Danforth also testified to measuring the nearest space between the car and the building, at the place of the injury, and found it seven and a half inches.

Israel Allen, who had charge of the track repairs, testified to the location of the track at the time of the injury, its relation to the building and the yard, that the track was moved six to eight inches, after the injuries to the plaintiff, away from the building, to make more room between the building and the track.

Frank M. Dunbar, who was on the same side of the car with the plaintiff and in front of him, described the method of moving the car by hand and his way of escape from the injury at the time.

Henry N. Hopkins, foreman of the blacksmith shop, called by the defendant, testified that it was the custom at the shop whenever he had occasion to move a car to call upon the men to do it, and the men usually came; that Mr. Farren told him that he had been through the place where the injury occurred when our cars stood there, and did not suppose there was any danger until he got caught.

The plaintiff testified in rebuttal, that he never made such a statement to Mr. Hopkins, that he had passed by a car standing at the door of the building, but not at the corner where the injury took place.

It was not claimed by the plaintiff that the tracks or buildings were in any other way unsafe or dangerous except in their relation to each other and to other permanent objects of the yard. Nor was it claimed that the car was unsafe or dangerous, except in its relation to the building, yard, and the track upon which it was moving. Other material facts appear in the opinion.

Upon all the evidence the court ruled that the plaintiff could not

recover, and directed a verdict for the defendant, and the plaintiff alleged exceptions.

Charles A. Reed, for plaintiff. J. M. Morton, for defendant.

C. ALLEN, J. The evidence would warrant a jury in finding that the defendant did not provide for its servants a reasonably safe place in which to do its work, and that there was danger in moving a car by man power in the place where this car was, by reason of its proximity to the building, and of the gradually lessening distance between the track and the building.

But the more difficult question is whether under the circumstances disclosed, and assuming all facts as favorably to the plaintiff as the evidence warrants, we can say, as matter of law, that the plaintiff, by voluntarily entering upon the work, should be held to take the risks. There is no doubt of the general rule that one who, knowing and appreciating the danger, enters upon a perilous work, even though he does so unwillingly and by order of his superior officer, must bear the risk, but where he is not aware of the danger, and such ignorance is consistent with due precaution, it is different. In the present case it appears that the plaintiff had a general knowledge of the position of the track and of the buildings with reference to each other, and that he also knew that cars were sometimes moved along there. But there was evidence tending to show that it was not a part of the business for which he was employed to assist in moving cars in the yard, though he was liable to be called on, when necessity required, to render such assistance; and he testified that when so called on he never refused, though he entered protest. He also testified that he had never before been called on to help in moving a car in the place where the accident occurred, and that he had never before been through that particular space between the car and that of the building. Of course he could see that this space was narrow; but it would seem that neither he nor the others who were pushing on the same side of the car with himself understood that it was too narrow to allow them to pass through in safety. This was his mistake. Seeing the situation in a general way, he took hold among others, and tried to pass through what proved to be too narrow a place for him. He did not rightly estimate the probability or extent of the peril to which he was exposing himself. Though he could see the position of the car and of the building, it might, nevertheless, be found by a jury that he did not appreciate, and in the exercise of due care was not bound to appreciate, the danger. If, under the circumstances stated, he was called upon by his foreman to assist in this work, which was outside of the work which he was employed to do, and in a place where he had not before done such work, and, if the peril was not obvious to him and he failed to take notice that the space between the cars and the building was too narrow for him to pass through with safety, and if his attention was so given to the work which he was doing that he did not discover the danger till it was too late to save himself, we cannot say, as a matter of law, that he must be held to have assumed the risk. The case is close; but the evidence is sufficient to be submitted to the jury upon the question whether he