The provision of the Gen. Sts. c. 63, § 101, by which every railroad corporation is made responsible to any person or corporation whose buildings or property are injured by fire communicated by its engines, is not penal, but remedial, giving all the damages to the party injured. Reed v. Northfield, 13 Pick. 94. Ross v. Boston Worcester Railroad, 6 Allen, 87. Perley v. Eastern Railroad, 98 Mass. 414.
A railroad corporation cannot mortgage its franchise and railroad without the authority of the Legislature, as shown by previous leave or subsequent ratification. Shaw v. Norfolk County Railroad, 5 Gray, 162. Commonwealth v. Smith, 10 Allen, 448. Richardson v. Sibley, 11 Allen, 65. When a mortgage is made by such authority, and the mortgagees take possession under it for breach of condition, they stand in the place of the corporation, vested with all the rights, and subject to all the liabilities, incidental to the exercise of the franchise and the operation of the railroad. Ballou v. Farnum, 9 Allen, 47. The mortgage from the Boston, Hartford and Erie Railroad Company to the *545defendants expressly transferred to them all the franchises, properties and rights of the corporation, and was ratified and confirmed by the Legislature. St. 1866, c. 142. See also St. 1878, & 289. The defendants were therefore liable for damages by fire from engines upon the railroad in their possession, to the same extent as the corporation itself would have been if no mortgage had been made.
The Gen. Sts. c. 63, §§ 115-119, provided that two railroad corporations created by this state, whose roads connected with each other, might contract that either corporation should perform all the transportation of persons and freight upon and over the road of the other ; that when such contracts were made, the corporation owning the road should “ be liable for all damage done or injury sustained thereon or in the use thereof, in the same manner and to the same extent that it would be liable if it performed the transportation itself; ” that every corporation owning a road in use should at reasonable times and for a reasonable compensation draw over it the cars of any other corporation authorized by law to unite its road with and use the road of the first; and that no engine should “ be allowed to run upon a railroad constructed by authority of this state, except such as is owned and controlled by the corporation owning and managing the road, unless with the consent of the corporation.” The clear implication from these provisions is that every railroad corporation should be liable for all injuries done by any engine run over its road, pursuant to its lease, agreement or consent, as if the engine were its own. Ingersoll v. Stockbridge & Pittsfield Railroad, 8 Allen, 438. The defendants, holding and exercising the franchise of the Boston, Hartford and Erie Railroad Company, were therefore responsible for any injury to the plaintiff’s property by fire from an engine run by the Providence and Worcester Railroad Corporation under the agreement with them.
Judgment for the plaintiff; damages to be assessed.