conveyed, and she has not joined in the conveyance. Gen. Laws, 0. 138, §§ 1—3; Tidd v. Quinn 52 N. H. 341, 344. The statute expressly provides that no deed or mortgage made by such person only shall affect or impair the interest of such wife, widow, or ...inor children, except a mortgage given to secure all or some part of the purchase money of such homestead. Gen. Laws, 0. 138, § 2.

The plaintiff ’s homestead right was not affected by the three mortr gages to Sweet, Monahan, and Stockwell, in which she did not join, as she has preserved her homestead right by occupation, (Horn v. Tufts, 39 N. H. 478. 484,) nor by the attachment of Legro, (Gen. Laws, 0. 138;) but it continues to exist in every part of the husband’s homestead real estate, to such a proportionate part as $500 bears to the value of the whole. Norris v. Moulton, 34 N. H. 392, 397; Tidd v. Quinn, supra. The plaintiff joined with the husband in the execution of the Benton mortgage, releasing her right in the homestead real estate conveyed, and reducing it to a right in the equity of redemption created by that mortgage. Fellows v. Dow, 58 N. H. 21; Pollard v. Noyes, 60 N. H. 184.

It is conceded by counsel that the description in the Benton mortgage includes only, when correctly construed, the Balch farm, to which we see no objection. Barnard v. Martin, 5 N. H. 536; Woodman v. Lane, 7 N. H. 241.

The Perkins pasture adjoins the Balch land, on which the house and buildings are ; the Weeks lot and the wood lot do not; but the four tracts were occupied and carried on together as one farm; and all, being connected by beneficial use, constituted the homestead. Gen. Laws, 0. 138; Burton v. Dearborn, 46 N. H. 43; Cole v. Bank, etc., 59 N. H. 53, 321. These lands have been sold, and from the sum received therefor deduct pro rata $500, the value of the homestead right, and pay the balance to each of the respective owners. As between Benton and Monahan, Benton is entitled to redeem the Monahan mortgage by paying him the sum the Monahan land sold for, less the per cent. deducted to satisfy the homestead right.

Such orders as may be required will be made at the trial term. Case discharged.

CLARK, J ., did not sit. The others concurred.

Manon 22. CONNECTICUT & P. R. Co.
(Supreme Court of Vermont. September 14, 1886.)

1. ACTION on SUIT—VENUE—TRANSITORY ACTION—PERSONAL Irmmms SUFFERED IN QUEBEC—ACTION IN VERMONT.

Action was brought in Vermont against a railroad company for personal injuries alleged to have been sustained by plaintiff in the province of Quebec, where defendant was operating a railroad, by reason of the defendant's neglect to comply with the statute law of the province. Held, that the action, being transitory, could be maintained. .

2. NEGLIGENCE—PLEADING—DECLARATION—FOREIGN LAW—DUTY CREATED BY FOREIGN LAW.

In actions for negligence, the facts creating the duty must be alleged, and, when a foreign law creates the duty, it becomes a traversable fact which must be alleged and specifically set forth in the declaration, as courts do not take judicial notice of foreign laws.

Edwards, Dickerman &‘ Young, for defendant.
Crane dc Alfred, for plaintiff.

WALKER, J. By this action the plaintiff seeks to recover for personal injuries alleged to have been sustained by him in the province of Quebec, through the defendant’s neglect to construct and maintain its railway, and at the point where it crosses a public highway in Stanstead, in said province of Quebec, in accordance with the provisions of a certain statute law of said province. The defendants demur to the plaintiff’s declaration, and insist, as one cause of demurrer, that the action is local, and cannot be maintained in this state, but should have been brought in the province of Quebec, where the alleged negligence occurred and injuries were received.

The rules of distinction between local and transitory actions are well settled. Local actions are such as require the venue to be laid in the county in which the cause of action arose, for the reason that the cause of action could only have arisen in a particular county. These include, as a general proposition, all actions in which the subject or thing in controversy, or thing sought to be recovered, is in its nature local,—such as actions of ejectment, and other actions brought to recover the seizin or possession of lands and tenements; also actions which do not directly seek the recovery of lands or tenements, but which arise out of a local subject, or the violation of some local right,—such as trespass quare ctausum fregit, trespass on the caSe for nuisances to real property, disturbance of right of way, obstruction or diversion of water-course, and so forth. The action of replevin is also usually held to be local, because of the necessity of giving a local description to the thing taken. Actions on penal statutes for penalties are also held to be local, but actions on a statute by the party aggrieved, for injuries sustained, are held to be transitory. Saund. Pl. & Ev. *412; 1 Com. Dig. “Action;” Bac. Abr. “Actions Local,” A.

Transitory actions are personal actions brought for the recovery of money or personal chattels, whether they sound in tort or contract. 1 Chit. Pl. 273. All actions can delicto, to the person or to personal property, in which a mere personalty is recoverable, are, as a general rule, by the common law, transitory in their nature, and the venue may be laid in the county where the cause of action arose, or where the plaintiff or defendant resides at the time of instituting the action, or in the county where service may be made upon the defendant, if he does not reside in the state. Gould, Pl. 0. 3, § 112; Bull. N. P. 196.

The test as to whether an action is transitory or local is not, as a general proposition, the subject causing the injury, but the object suffering the injury. Transitory actions have foundation in the supposed violation of rights which, in the contemplation of law, have no locality, and for which the right to compensation is recognized by thelaws of all coun

tries, and rest upon the rule of international comity that every nation may rightfully exercise jurisdiction over all persons within its limits in respect to matters purely personal. Story, Confl. Laws,§ 542; Herrick v. Minneapolis (5: St. L. R. Co., 11 Amer. & Eng. R. Gas. 256; S. C. 16 N. W. Rep. 413.

From the decision in the case of Rafael v. Verelst, 2 W. B1. 1055, the doctrine that personal injuries are transitory in their nature has never been questioned. It is now well settled that the nature of the remedy, and the jurisdiction of courts to enforce it, is not dependent upon the question whether it is a statutory or common-law right.

The question as to whether a person may be held liable in a personal action, in any court to whose jurisdiction he can be subjected by personal process, Where the right of action against him is dependent solely upon the statute of another state, was before the United States supreme court in the case of Dennick v. Central R. ofN. J., 103 U. S. 11, in which Justice MILLER, in delivering the opinion of the court, says:

“Wherever, by either the common law or the statute law of a state, a right of action has become fixed, and a legal liability incurred, that liability may be enforced, and the right of action pursued, in any court which has jurisdiction of such matters, and can obtain jurisdiction of the parties. We do not see how the fact that it was a statutory right can vary the principle. If the defendant was legally liable in New Jersey. he could not escape that liability by going to New York. If the liability to pay money was fixed by the law of the state where the transaction occurred, is it to be said it can be enforced nowhere else, because it depended upon statute law, and not upon common law? It would be a very dangerous doctrine to establish that, in all cases where the several states have substituted the statute for the common law, the liability can be enforced in no other state but that where the statute was enacted and the transaction occurred. ”

The supreme court of this state, in Cady v. Sanford, 53 Vt. 632, approved the doctrine that the nature of the remedy, and jurisdiction of the courts to enforce it, is not, under the rule of international comity, dependent upon the question whether it is a statutory right or a common-law right.

In this case the action is not brought to recover a penalty for a forfeiture imposed for transgressing the provisions of the statute declared upon, nor to recover anything local in its nature, but for a personal injury alleged to have been sustained in the province of Quebec by the party aggrieved, through the neglect of the defendant to comply with the provisions of the statute of the province; and upon general principles, and the authority of the foregoing cases, the action must be held to be transitory, and as properly brought in this state.

Although a civil right of action acquired or liability incurred, in one state or country, for a personal injury, may be enforced in another to which the party in fault may have removed, or where he may be found, yet the right of action must exist under the laws of the place where the act was done or neglect accrued. If no cause or right of action for which redress may be had, exists in the country where the personal injury was received, then there is no cause of action to travel with the person claimed to be in fault which may be enforced in the state where he may be found. So the vital question upon the demurrer to the declaration in this case is whether it shows a right of action which became fixed and a legal liability incurred by the defendant in the province of Quebec, under the statute declared upon.

The gist of the action is the alleged negligence of the defendant in its failure to construct and maintain the railway crossing across the highway in question, in accordance with the provisions of the statute law of the province Of Quebec. To uphold the action upon demurrer it is essential that the declaration should set forth the foreign law relied upon as establishing the liability of the defendant to construct and maintain the crossing in a safe condition for persons and teams to pass over, and that it should allege, in connection with the foreign law, such a statement of facts as will show to the court that the defendant owed a duty to the plaintiff in respect to the safety of the crossing, and that the defendant had fallen short of its duty in that respect, and also that the plaintiff’s injury resulted from such shortage Of duty.

The first count of the declaration alleges that the defendant was operating the Massawippi Valley Railway, chartered under the province of Quebec; and recites a certain statute law of the province which provides that “no part of the railway which crosses any highway in said province of Quebec, without being carried over said railway by a bridge, or under said railway by a tunnel, shall rise above or sink below the level of the highway more than one inch.” It further alleges that this railway crossed a highway in Stanstead, in the province of Quebec, without being carried over the same by a bridge, or under the same by a tunnel, and rose more than one inch above the level of said highway, to-wit, two and a half inches; and that the plaintiff, in driving along the highway over the railway crossing, was thrown from his sleigh and injured, by reason of the railway rising at that point more than one inch above the level of the highway. \Ve think this count is wanting in material allegations, and therefore had.

A declaration in negligence under a foreign law, for personal injuries occasioned through a breach Of duty imposed by it, is not analogous to a declaration under the old highway law making towns liable for injuries sustained through the insufficiency and want Of repair of their highways. That law was a local one, imposing a duty, and declaring a liability for a breach of the duty, Of which the courts of the state took judicial notice; and, in declaring upon a right of action accrued under it, the pleader was not required to allege the law imposing the duty and liability. It was necessary to allege only generally the duty the town owed to the public in respect to the highway, and the facts that established the breach of duty under the law. Courts do not take judicial notice of foreign laws, or laws of other states; and when a foreign law is relied upon as establishing a duty or right of action, it must be set forth in the declaration, and proved as a fact. 1 Chit. Pl. 215; Collett v. Keith, 2 East, 27 3; Holmes v. Broughton, 10 Wend. 75; Peck v. Hibbard, 26 Vt. 698; Hempstead v. Reed, 6 Conn. 480.

In actions for negligence, all the facts creating the duty must be set forth in the declaration, unless the duty is one imposed in a local law, when a general allegation of duty is doubtless sufficient. 2 Add. Torts, 1147; Kennedy v. Morgan, 57 Vt. 48. When a foreign law creates the duty, it becomes a traversable fact, like any other fact creating a duty, upon which the defendant has a right to go to the jury, and it must be alleged in the allegation.

The law of the province of Quebec upon which the plaintiff relies as establishing his right of action in this count, so far as it is set forth therein, does not show a duty resting upon the defendant to construct and maintain the railway crossing in accordance with the provisions of the law. It does not appear from it upon whom the duty is placed. There is no allegation in this count that the defendant owed any duty to the public or the plaintiff, in respect to the construction and maintenance of the crossing, nor does it contain any allegation of the facts which raise any such duty on the part of the defendant to the plaintiff or the public, nor does it allege any breach or shortage of duty on the part of the defendant in respect to the construction and safety of the crossing. The allegations of the count do not show a right Of action that became fixed, or any liability incurred, under the statute, in the province of Quebec, and the count must be held to be fatally defective.

The second count alleges that it was the duty of the defendant, under the laws of the province of Quebec, to keep the Massawippi Valley Railway, where the same crossed public highways, and was not carried over the same by a bridge, nor under the same by a tunnel, in the town Of Stanstead, in good and sufficient condition for the safe passage of persons and teams and travel over and across the highway at such crossings; and that the railway crossing in Stanstead complained of was not carried over the highway by a bridge, nor under the same by a tunnel, and that the defendant suffered the railway where it crossed the highway mentioned to be in an unsafe and bad condition'and state of repair; and that the plaintiff, while driving along and over the highway where it is crossed by the railway, was, by reason of the faulty and improper construction of the railway, and its unsafe condition, and want of repair, thrown from his sleigh, and injured; and that by virtue of the laws Of the province of Quebec an action hath accrued to him, and so forth.

We think this count attempts to declare upon the laws of the province Of Quebec. It alleges that it was the duty of the defendant, under the laws of that province, to maintain the railway crossing in question, which was not carried over the highway by a bridge, nor under it by a tunnel, in a sufficient condition for the safe passage of persons and teams, and, after averring a breach, concludes with the allegation that, by virtue of the premises, an action has accrued to the plaintiff under the laws of the province of Quebec. It is apparent that the plaintiff relies upon the laws of the province of Quebec as creating and establishing the duty; but the foreign law relied upon is not alleged and specially set forth in the count, so that the court can see what duty, if any, is imposed by it upon the defendant in respect to the construction and safety of the railway