upon a statute which confers it; and that in such case the action can only be maintained here by proof that the statutes of the State in which the injury occurred give the right of action, and are similar to our own. Upon the question of similarity we have also held that the two statutes need not be identical in their terms, or precisely alike, but it is enough if they are of similar import and character, founded upon the same principle, and possessing the same general attributes. (Leonard v. Navigation Co., 84 N. Y. 53.) It is quite evident that the two statutes are of similar import. They are founded upon the same principle, are aimed at the same evil, construct the same sort or kind of action, and give it for the benefit of the same class of individuals. In both the utter failure of redress at common law where the injury ended in death was the injustice for which a remedy was enacted; and in both the new action was given for the benefit of those who had suffered an injury as the consequence of the wrong. This fundamental agreement in the main and substantial characteristics of the two statutes is not affected by the differences of detail which the demurrer points out. The first is that by the lex loci the proper person to bring this action, and the only person who can maintain it, is the widow; while by our law the right of action is given to the executor or administrator. But it is given to the latter not in his broad representative character, but solely as trustee, in a case like the present, for the widow and children. (Hegerich v. Keddie, 99 N. Y. 267.) It is not a right which survives to the personal representatives, but a right created anew. The real parties in interest,- those whose injury is redressed, whose right is vindicated, to whom all damages go, are one and the same in both forums. the formal parties are different, the substantial and real parties are identical, and the difference in the trustee appointed by the law to represent their right is not such a difference as to bar our tribunals from their jurisdiction, or make the two statutes dissimilar under the rule.

If

It is claimed, however, that, even in that event, the right of action accruing in the place of the transaction can only be enforced in our jurisdiction under our remedial forms, and so should have been brought by the plaintiff, not as a widow, but

as administratrix, to which office she had been appointed in this State. But it must not be forgotten that the cause of action sued upon is the cause of action given by the lex loci, and vindicated here and in our tribunals upon principles of comity. (84 N. Y. 53, supra.) That cause of action is given to the widow in her own right and as trustee for the children, and we open our courts to enforce it in favor of the party who has it, and not to establish a cause of action under our statute which never in fact arose. We refer to the lex fori, and measure it by and compare it with the lex loci, I think, for two reasons, one, that the party defendant may not be subjected to different and varying responsibilities; and the other, that we may know that we are not lending our tribunals to enforce a right which we do not recognize, and which is against our own public policy; and we do not refer to our law as creating the cause of action which we enforce. It is the cause of action created and arising in Pennsylvania which our tribunals vindicate upon principles of comity; and, therefore, must be prosecuted here in the name of the party to whom alone belongs the right of action; and that rule the courts of Pennsylvania enforce where the cause of action arises here, by permitting it to be brought by the executor or administrator to whom by our law the right is given, although not by their own. (Usher v. Railroad Co., 126 Pa. St. 207; 17 Atl. Rep. 597.)

But the second difference relied on is that in Pennsylvania there is no restriction upon the amount of damages which may be recovered, while in our State they cannot exceed $5000. That restriction pertains to the remedy, rather than the right. (Dennick v. Railroad Co., 103 U. S. 11.) It is a limitation upon the discretion of the jury in fixing the amount of damages, but not upon the right of action, or its inherent elements and character. The restriction indicates our public policy as to the extent of the remedy, and the plaintiff who chooses to avail herself of our remedial procedure must submit to our remedial limitations, and be content with a judgment beyond which our courts cannot go. They cannot exceed it in a case arising here, and no principle of comity requires them to enlarge the remedy which the plaintiff voluntarily seeks. There may be there very possibly is an exception to that rule,

resting upon its own peculiar reasons, in a case where the defendant is not, as here, a domestic corporation, formed under our law, and so entitled to the benefit of our remedial limitations, but is a corporation of the State within whose jurisdiction the cause of action arose, and by whose law no restriction upon the amount of damages is permitted or enacted. We do not decide that question; but the same reasoning which would expose such a corporation to the law of its own jurisdiction would serve equally to justify the right of the domestic corporation to be protected by the remedial limitations of its jurisdiction. The difference between the two statutes, therefore, does not strictly affect the rule of damages, but rather the extent of damages; and that extent, as limited or unlimited, does not enter into any definition of the right enforced, or the cause of action permitted to be prosecuted; and so the causes of action in the two forums are not thereby made dissimilar. These views lead to an affirmance of the interlocutory judgment. All concur.1

SECTION 3. MASTER AND SERVANT.
HYDE v. COOPER.

(26 Vt. 552.-1854.)

TRESPASS for an ox. In this case an officer had sold property on execution without sufficient notice, and the plaintiff in the execution was sued on the theory that he had adopted the officer's tort. The only evidence of adoption was that before the sale he had expressed the opinion that the notice was sufficient, and that he received the money on the execution.

Cooper & Bartlett for defendant.

J. H. Prentiss for plaintiff.

1 A less liberal policy obtains in some States, partly because of their statutes, e.g. Taylor's Adm'r. v. Penn. Co., 78 Ky. 348; 39 Am. R. 244; Davis v. N. Y. & N. E. Ry:, 143 Mass. 301; Oates v. Union Pac. Ry. Co., 16 S. W. 487 (Mo.).

No doubt, if the officer takes the property of one man, upon another's debt, or sells at private sale, and the creditor accepts the money, knowing the facts, he may be liable for the acts of the officer. But in such case the acts are not regarded as official. But it would scarcely be consistent, with sound reason, to apply the same rule to all the acts of an officer. It would be almost equivalent to exonerating the officer from all official responsibility.

The views here expressed are strongly confirmed, by the decision in the case of Abbott v. Kimball, 19 Vt. 551. As a general rule, perhaps, where the mistake is one of fact, and such as makes the officer a trespasser, and the party knowing all the facts, consents to take the avails of a sale, or where he counsels the very act which creates the liability of the officer, he is implicated, to the same extent as the officer. But when the party does not direct or control the course of the officer, but requires him to proceed at his peril, and the officer makes a mistake of law in judging of his official duty, whereby he becomes a trespasser, even by relation, the party is not af fected by it, even when he receives money, which is the result of such irregularity, although he was aware of the course pursued by the officer. He is not liable, unless he consents to the officer's course, or subsequently adopts it. And if he does that he cannot maintain an action against the officer for doing the act, and the consequence would be, that if receiving the avails of a sale on execution were to be regarded, in all cases, as amounting to a ratification of the conduct of the officer in the sale, it must preclude the creditor from all suit against the officer on that account, which has never been so regarded. The party may always take money, which the officer informs him he has legally collected, without assuming the responsibility of indorsing the perfect legality of the entire detail of the officer's official conduct in the matter.

For if the officer is compelled to refund to the debtor, on account of his irregularity of procedure, that will not affect the right of the creditor to retain the money. He is still entitled to retain the money against the officer. And the

party cannot claim the money of the creditor without thereby affirming the sale. So that the creditor's accepting the amount of money for which the property sold, is no more a ratification of the conduct of the officer, than if he took the money of the officer on any other liability. The money is the officer's, whether he was a trespasser or not, and he is at all events liable to the creditor. If the sale was irregular, that is his loss, he must still pay the creditor, and accepting the money is but taking pay for the officer's liability to the creditor, for his default in the sale, if it was irregular. So that in any view of the case, there is no ground of implicating the defendant.1 Judgment affirmed.

TORT, against the owners in trust of an estate on Washington street, in the city of Boston, for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendants, or of their servants or agents, by the fall of a derrick. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows:

There was evidence tending to show that the injury to the plaintiff was caused by the negligence of the workmen employed by one Elston, who had a written contract with the defendants, by which he agreed "to take down the entire building known as the Adams House in said Boston, belonging to said trustees, or so much thereof as the trustees may request;" and which also provided as follows: "All of said work to be done carefully, and under the direction and subject to the approval of the trustees."

The plaintiff also offered some evidence of negligence on the

1 Lewis v. Read, 13 M. & W. 834; Dally v. Young, 13 Ill. App. 39; Dunn v. H. &c. Ry. Co., 43 Conn. 434.