wrongful conduct of the defendant, has been put to expense in the employment of counsel, the amount so paid is an element of damage in an action against the defendant arising out of such wrongful conduct. Wheeler v. Hanson, 161 Mass. 370, 37 N. E. 382, 42 Am. St. Rep. 408, and cases cited.

ceedings. Where the language of a statute | foreclosing a mortgage under a power of sale. is of doubtful import, the contemporaneous So where the plaintiff, in consequence of the construction put upon it by officers thereby charged with performance of public duties is strong evidence of its meaning. The understanding and application of statutory words susceptible of different meanings, through years of practice, and sanctioned by the acquiescence of the Legislature, is significant of the intention with which they were employed originally." Briefly stated, the ground of the decision was that the acquiescence of the Legislature for two generations | Mass. 249, 251. in the interpretation given in practice to its own language susceptible of two meanings, is ground for holding that this interpretation is in accordance with the legislative intent.

In Whitney v. Lynn, 122 Mass. 338, which was a petition for a jury "to assess the indemnity for trouble and expense" occasioned to the petitioner by the laying out of a street over his land not finally entered upon for the construction of the street, it was held that under Gen. St. c. 43, § 14, which provided that if in such a case a person "has been put to damage and expense by the proceedings" to lay out, "he shall be fully indemnified therefor," the petitioner was entitled to recover money paid to counsel solely concerning these proceedings for the two years after the lay out. There was no claim for allowance for counsel fees for services in the suit itself. So in Boston & Albany R. R. v. Charlton, 161 Mass. 32, 36 N. E. 688, which was a pro

ceeding for the abolition of grade crossings under St. 1890, c. 428, it was held that money paid by the town for reasonable counsel fees in defending claims for damages for land taken were to be allowed under section 7 as a part of the accounts of expenses. The

of the entire work

court say (161 Mass. 34, 36 N. E. 689): "The general purpose of the sections of the statute * is that the whole cost or expense should be paid by the railroad company, the commonwealth, and the city or town. Legal expenses may be unavoidable, and if reasonably incurred we think that they must be held to have been incurred for the benefit of all in the proportion in which the general cost or expenses are to be borne, and that they should be allowed." [2, 3] And when actions are brought to recover indemnity either where the right to indemnity is implied by law or arises under a contract, reasonable counsel fees which have been incurred in resisting the claim indemnified against may be recovered as a part of the damages and expenses. Hadsell v. Hancock, 3 Gray, 526; Pond v. Harris, 113 Mass. 114; Faneuil Hall Ins. Co. v. Liverpool & London & Globe Ins. Co., 153 Mass. 63, 26 N. E. 244, 10 L. R. A. 423; Montgomery Door & Sash Co. v. Atlantic Lumber Co., 206 Mass. 144, 147, 92 N. E. 71, and cases cited. See also Bangs v. Fallon, 179 Mass. 77, 60 N. E. 403, as to the right to

[4] Courts of equity, in certain cases under its general powers, allow counsel fees. Frost v. Belmont, 6 Allen, 152; Brown v. Corey, 134

The above are the leading cases where this court has had occasion to consider the meanIt is unnecesing of the term "expenses." sary to cite other cases. It is plain that as applied to expenses incurred in the suit itself the word is capable of two meanings, and its true meaning is to be determined by a consideration of the circumstances.

It is to be noted that we are not dealing with a case in equity like Frost v. Belmont, ubi supra, nor with the practice in probate courts existing under St. 1884, c. 131, a statute manifestly passed to remove the disability of the probate courts before that time to allow counsel fees, nor with liabilities to indemnify, whether created by law or express contract, as in the cases hereinbefore cited on that branch of the subject, nor with a prosecution of an inquiry conducted by the court or its authority into the alleged misconduct of an attorney at law, as in Burrage v.

County of Bristol, 210 Mass. 299, 96 N. E. 719, continued practice seemingly sanctioned by a proceeding sui generis, and where a longthe Legislature aids in the solution, nor where the Legislature aids in the solution, nor where 161 Mass. 32, 36 N. E. 688, the expenditures as in Boston & Albany R. R. v. Charlton, are for a work for which all the parties are answerable. Nor yet where, as in Wheeler v. Hanson, 161 Mass. 370, 37 N. E. 382, 42 Am. St. Rep. 408, the plaintiff has in a prior action been put to the expense of employing counsel by reason of the unlawful conduct of the defendant. On the contrary we are dealing with a proceeding in the nature of an action at law. There are only two parties, the tax payer and the town. There is only one question, whether there shall be an abatement. The interests of the parties are directly antagonistic to each other, the one being for abatement, the other against it. Neither is under any obligation to indemnify the other. They stand "at arm's length" with reference to each other. The question arises upon a demand against the taxpayer. He has a right to have the matter heard and decided according to law. In all material respects the proceeding is an action at law. It is true that it is for the interest of all that taxes should be finally fixed with promptness and should be speedily collected. But the proceeding for an abatement in no way interferes with the collection of a tax as originally assessed. The tax as originally assessed

ceedings. In the present case it was paid | distribution given to the assessors, there was pending the proceedings. The application no such distribution by executors as rendered for abatement may be made even after the tax is paid.

Certain executors having failed to file a list of the property in their hands subject to taxation, as required by statute, the assessors assessed a tax upon property valued at about $100,000, and in December made an additional assessment on omitted property of $4,000,000. Held, that the failure to assess until December created no estoppel in favor of the executors, as the parties were not on an equal footing, the executors knowing and the assessors not knowing the character and items of the property in the executors' hands, and failure on the part of public officers, at the earliest possible moment available, to perform their statutory obligation, works no estoppel against performance at a later time, but within that permitted by law.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 600; Dec. Dig. § 361.*]

7. TAXATION ($ 84*)-ASSESSMENT - ABATEMENT GROUNDS FOR DENIAL.

6. TAXATION (§ 361*)-ASSESSMENT-CORREC- [ the estate a tax upon personal property valTION-ASSESSMENT OF OMITTED PROPERTY. ued at about $100,000, and in December, acting under R. L. c. 12, § 85, the assessors made an additional assessment on omitted estate of $4,000,000. In 1909 the plaintiffs, claiming to have transferred certain property from themselves as executors to themselves as trustees, in their capacity as trustees filed with the assessors a list of property held by them as trustees, but filed no list of property held by them as executors. They filed a list as trustees in 1910. The executors, however, had made no such transfer of the personal property held by them as executors to themselves as trustees as amounted to a distribution under St. 1909, c. 490, pt. 1, § 23, cl. 7, so as to render such property no longer taxable to them as executors, because they had filed no account in the probate court showWelch v. Boston, 211 ing such transfer. Mass. 178, 97 N. E. 893. No such account was filed or allowed until March, 1911. There are no circumstances in the case at bar materially different from those disclosed in Welch v. Boston and the rule there laid down governs this aspect of the case at bar. The giving of notice of distribution by the executors to the assessors in April, 1909, under section 23, clause 7, of the tax law was of no It is a reimportance in this connection. quirement in addition to that for a sworn list having a quite different purpose. Vaughan v. Street Com., 154 Mass. 143-146, 28 N. E. 144. The legality of the assessment of the taxes of 1908 was contested. Sears v. Nahant, 205 Mass. 558, 91 N. E. 913; Sears v. Nahant, 208 Mass. 208, 94 N. E. 467. 1909 taxes were assessed to the plaintiffs as trustees who had filed a list of property subject to taxation in Nahant on the theory that

The power to grant an abatement under Tax Law (St. 1909, c. 490, pt. 1) §§ 72-83, inclusive, is subject to the imperative provision of section 49 that an assessment against executors shall not be diminished until a true list of the property in their hands has been filed; and hence the failure to bring in such list prevented an abatement, even though there was a reasonable excuse for such failure.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 174; Dec. Dig. § 84.*] 8. TAXATION ($ 334*)-ASSESSMENT-LIST BY TAXPAYER-TRUE LIST."

Under Tax Law (St. 1909, c. 490, pt. 1) § 49, requiring assessors, before making an assessment, to post notices requiring all persons subject to taxation to bring in a true list of their personal estate not exempt from taxation, a list brought in by executors, which omitted hundreds of thousands of dollars of taxable property, was not a "true list," even though it was filed under an honest mistake as

to the law.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 5612; Dec. Dig. § 334.*]

Exceptions from Superior Court, Essex County; Charles U. Bell, Judge.

Proceeding by Frederick R. Sears and others against the Town of Nahant for an abatement of taxes assessed against plaintiffs. Finding for petitioners, and defendant brings exceptions. Exceptions sustained.

Tyler, Corneau & Eames and W. C. Rice, all of Boston, for petitioners. Samuel H. Hudson and Philip Nichols, both of Boston, for respondent.

In

there had been a distribution to themselves as trustees. In December of that year taxes again were assessed upon the plaintiffs as executors upon four millions of dollars of personal property. This tax was collected under protest and action (which is still pending) was brought by the plaintiffs against the town of Nahant to recover it. The same assessment was made again in December, 1910. Within six months after the receipt by the plaintiffs of their tax bill as executors for the year 1910 they for the first time filed a list as executors, setting out that in that capacity they had no property, and at the same time they filed a petition for the abatement of the assessment, which is the foundation of the present proceeding.

RUGG, C. J. [1, 2] This is a petition for the abatement of the taxes assessed for the year 1910 to the plaintiffs as executors of the will of Frederick R. Sears, who died domiciled in Nahant, in June, 1907. He left personal estate of about $4,200,000, a part of [3] It is urged that the list filed by the which was given to kindred and a part to executors is unavailing because not properly the plaintiffs as trustees to hold upon trusts. sworn to. Section 43 of the Tax Law requires The plaintiffs were duly appointed both ex- all lists to be under oath and further that ecutors and trustees under the will. No list "the oath may be administered by any of the was filed with the assessors of Nahant for assessors or by their secretary or head clerk. the year 1908 by the petitioners either as If the person * bringing in such list trustees or executors. In July of that year, is absent from the place in which the tax is but as of May 1st, the assessors assessed to to be assessed during the whole period when

sonal property assessed the first year should be paid out in debts or distributed in fact and yet there might remain a large amount of taxable property undisclosed in the hands of the executors. The peremptory terms of section 49 guard the assessors from being: misled by representations of this kind without a full disclosure of the entire estate subject to taxation.

It therefore is the duty of assessors not to diminish the amount for which executors are taxed after a legal assessment to them once has been made until a list has been brought in. The first valid assessment against executors determines the basis of succeeding assessments until a list is brought in or a distribution made. In Blackie v. Boston, 208 Mass. 188, 94 N. E. 283, it was held that this statute did not prevent an increase of an assessment upon executors over that of the preceding year in the absence of a list, provided the previous assessment was found to be too small but it was said that this section "is given full effect by treating it only as a limitation preventing a taxation for a less amount until a true list is brought in as required by law." The implication of this language plainly is in accordance with the conclusion now reached. Intimations to the same effect are found in Vaughan v. Street Com'rs, 154 Mass. 143, 28 N. E. 144, and in Batchelder v. Cambridge, 176 Mass. 384, 57 N. E. 664.

such oath may be made, it may be adminis- | well might be that the entire amount of pertered by a notary public, whose jurat shall be duly authenticated by his seal." The facts found by the superior court upon this point are that the executors were not residents of Nahant during the period in question, but resided elsewhere within the commonwealth, and "were in the town casually," within the period during which the list should have been filed. Under these circumstances the statute permits the list to be sworn to as this one was before a notary public. A casual presence in the town not shown to have been during business hours or under such circumstances that they might reasonably have sought the assessors does not prevent the plaintiffs from being "absent" from the town within the meaning of this statute. Apparently there was no refusal to appear before the assessors and answer under oath in accordance with section 46 of the statute. Cody v. Spear, 214 Mass. 241, 101 N. E. 146. [4] The next question presented is whether the assessment for the year 1910 to the plaintiffs as executors was a valid assessment. The assessors regularly called for lists as required by law. It is to be observed that the plaintiffs up to that time had refused persistently to file any list as executors. No account up to that time had been filed in the probate court. The assessors, therefore, had no means of knowledge as to the extent of the estate based upon any statement under oath by the executors. The plaintiffs appeared before the assessors at a hearing in 1909 and refused under advice of counsel to answer any questions touching the property received and held by them as executors. It has not been and could not be successfully argued that the assessment of the year 1908 was not legal. St. 1909, c. 490, pt. 1, § 49, provides that "after personal property has been legally assessed in any city or town to an executor, administrator or trustee, an or trustee, an amount not less than that last assessed by the assessors of such city or town in respect of such property shall be deemed to be the sum assessable, until a true list of such property is brought in to the assessors in accordance with the provisions of section fortyone." The language is unequivocal and peremptory to the effect that in making assessments, until a list is filed by the executors, the amount of the last assessment "shall be deemed to be the sum assessable." Unless these words are given effect as a binding direction to the assessors, in substance they would have no force at all. The tax law is plain. In the first place everybody is required to bring in a list by section 41. If no list is furnished of necessity the assessors are somewhat in the dark as to the property subject to taxation. When the estate of a deceased person is in process of settlement, the list is not only required but the assessors are forbidden to diminish the first assessment

[5] It is argued earnestly, however, that the assessors did not follow the course required by the statute for the reason that the assessment of 1910 was not laid until December, and that as matter of law the assessors at that time having failed to assess the property at the usual time had no authority to assess it under St. 1909, c. 490, pt. 1, § 85, as an omitted assessment. It was found by the superior court that the assessors had no new knowledge respecting this property in December, 1910, in addition to that which they had in April. Therefore it is urged that it was not newly discovered property and hence could not lawfully be assessed. But we are of the opinion that section 85 as to omitted assessments does not require that the property be newly discovered in the sense of coming for the first time to the knowledge of the assessors, in order that it may be legally assessed. Unless may be legally assessed. If the assessors, through want of knowledge of facts or ignorance of the law or as to their duty or for any other honest reason have failed to include property in the annual assessment, it is omitted property within the meaning of that section, and in the exercise of good faith, they may include it in a supplemental assessment. In the case at bar there is no finding of bad faith on the part of the assessors, so it is not necessary to determine what its effect might be. The circumstances dis

assessors in doubt as to the course they have appealed to the superior court.
ought to pursue. The petitioners were refus-
ing to comply with the requirement by the
statute that they bring in a true list as exec-
utors and were conducting three different
forms of action against the assessors and the
town for the purpose of contesting the valid-
ity of earlier assessments. Under these cir-
cumstances hesitation in acting does not ren-
der illegal their conduct in finally following
the plain language of the statute requiring
the continuance of the assessment of the
year before.

But

the direct and immediate cause of this result is the initial refusal of the plaintiffs, persisted in during more than three years, to follow the plain and explicit requirement of the statute seasonably to file a list of the property which came to their hands as executors. A primary compliance with this law would have afforded full protection for their rights. The consequences of this failure, also plainly set forth in the tax law, offers no just ground for complaint. It falls far short of invading any constitutional right of the plaintiffs as executors.

Exceptions sustained.

(180 Ind. 86)

CURLESS et al. v. WATSON. (No. 22,422.) (Supreme Court of Indiana. June 27, 1913. Dissenting Opinion July 25, 1913.)

PEAL.

[6, 7] The failure to assess until December created no estoppel in favor of the plaintiffs. The parties were not on an equal footing. The plaintiffs were trying to settle the estate without filing any list with the assessors as required by law. They knew and the assessors did not know the character and items of personal property, which came to their hands as executors. Failure on the part of public 1. APPEAL AND ERROR (§ 1*)-RIGHT OF APofficers at the earliest moment available to them to perform their statutory obligation does not work an estoppel against such performance at a later time but within that permitted by law. No true list has ever been filed by the executors so far as disclosed on this record. It is plain that the list filed by the petitioners for the year 1910 was not a true list. Under the decision of Welch v. Boston, 211 Mass. 178, 97 N. E. 893, which simply affirmed the earlier case of Hardy v. Yarmouth, 6 Allen, 277, the petitioners were liable to taxation as executors for

for the

amounts given them as trustees until their account as executors showing a distribution

to themselves as trustees had been allowed in the probate court. It is therefore immaterial that the superior court has found that there was a reasonable excuse in 1910 for the petitioners not to bring in a list within the time limited by section 41. The power to grant an abatement under sections 72 to 83, both inclusive, of the tax law, is subject to the imperative provision of section 49 to the effect that the assessment of personal property in the hands of executors shall not be diminished until a true list has been filed. [8] It is not necessary to determine the precise meaning of "true list" for it is plain that a list which omitted hundreds of thousands of dollars of the taxable property for which the executors still were liable because no account had been filed in the probate court showing its transfer to them as trustees, even though filed under an honest mistake as to the law is not a "true list." It follows that the assessment for 1910 was valid and that the petitioners having failed to file a true list are not entitled to an abate

ment.

Although we have nothing to do in this proceeding with the taxes assessed to the plaintiffs as trustees for 1910, it is urged that this is a harsh result and this view seems to

The Constitution does not grant to any committed to the discretion of the Legislature one the right to an appeal, such right being by Const. art. 7, § 4.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1-4; Dec. Dig. 1.*] 2. COURTS (§ 1*)-"JURISDICTION."

The term "jurisdiction," as applied to courts, means the legal right by which judges exercise their authority.

[Ed. Note. For other cases, cases, see Courts, Cent. Dig. §§ 1-4, 6-9, 91-106; Dec. Dig. § 1.*

For other definitions, see Words and Phrases, vol. 4, pp. 3876-3885; vol. 8, pp. 7697, 7698.j 3. APPEAL AND ERROR (§ 1*)-"WRIT OF ER

ROR."

A "writ of error," both at the time of the adoption of the Constitution and since, has had a definite meaning, to wit, a writ authorizing error in the proceedings as relating only ing an appeal from an inferior court, assignto matters of law arising on the face of the proceedings, so that no evidence is required to 4, authorizes the Legislature to make such regsubstantiate or support it. Const. art. 7, 8 ulation and restrictions thereof as it sees fit, which the Legislature has done from time to time by providing rules for the transfer of Court, which will take the place of the concauses from other courts to the Supreme stitutional appeals and writs of error; the Legislature being authorized to call the writ of error an appeal or certiorari.

Error, Cent. Dig. §§ 1-4; Dec. Dig. § 1.*
[Ed. Note. For other cases, see Appeal and
For other definitions, see Words and Phrases,
vol. 8, pp. 7533-7535.j

"RE

4. COURTS (§ 220*)-SUPREME COURT-JURIS-
DICTION LIMITATION STATUTES
STRICTION"-"REGULATION."
viding that the judicial power of the state
Since under Const. art. 7, §§ 1, 4, pro-
shall be vested in the Supreme Court and cer-
tain other courts, as the General Assembly
may establish, and that the Supreme Court
shall have jurisdiction co-extensive with the
limits of the state in appeals and writs of
error, under such regulation and restrictions
as may be prescribed by law, the Legislature
Court of ultimate appellate jurisdiction, but
may not constitutionally deprive the Supreme
is only authorized to regulate and restrict the

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes