Exceptions from superior court, Suffolk county; H. Hardy, Judge. Action by Leach against Eastman, and action by Eastman against Leach. There was judgment for plaintiff in the first action, and defendant brings exceptions, and judgment for defendant in the second action, and plaintiff brings exceptions. Exceptions overruled. Frank T. Benner and Sumner H. Foster, for plaintiffs. Francis S. Hesseltine, for defendants. LORING, J. The first of these two actions is an action to recover from a deputy sheriff the balance of a sum of money collected by him on an execution in favor of the plaintiff against the Leach Motor Vehicle Company. The balance sued for was retained by the deputy sheriff as partial payment of money due in part under an alleged oral agreement, by which the defendant had agreed to pay him for keeper's fees and custody beyond the 10 days specified in Pub. St. c. 199, § 6. The second action is brought by the deputy sheriff to recover the amount due in part under said alleged agreement, after deducting the moneys retained by him out of the sums collected on execution. The attachment giving rise to the questions here in suit was made on September 12, 1900. The personal property attached consisted of "all the stock, machinery, and fixtures in the factory occupied by the defendant." The 10 days specified in St. 1878, c. 272, § 1 (Pub. St. c. 199, § 6, R. L. c. 204, § 10) expired on September 22d. At the request of the attaching creditor, made by word of mouth, the officer "did not remove the attached property at the expiration of the 10 days, but kept the machinery in the factory in charge of the keeper." About October 1st, the attaching creditor got possession of the fac tory in question under one Taber, who held a mortgage on it, and who had entered for breach of the conditions of the mortgage, and proceeded to use the machinery held under the attachment in carrying on the manufacturing business, which had been carried on by the defendant in the attachment suit, until October 15th, when the defendant in the attachment suit notified the officer "not to permit" the attaching creditor "to use the machinery." On February 25, 1901, the sheriff seized the machinery on execution, and sold the larger part of it March 1st. This sale was not carried through, and the property was resold on April 13th of that year. The four items in dispute are: Item 4, for keeper's fees from October 16 to November 22, 1900, inclusive, $76; Item 5, for custody from September 12, 1900, to February 25, 1901, $83; Item 7, for custody from March 15, to April 13, 1901, $23.50; and Item 8, for day and night keepers' fees from March 5 to April 13, 1901, $156. The presiding judge ruled, at the request. of the plaintiff in the first action and of the defendant in the second action, that "in the absence of written consent or special order of the court, as provided by the Public Statutes, Eastman [the officer who made the attachment] could not charge and retail from the money derived from sale on execution, for keepers' fees and custody, a greater compensation than that allowed by statute, or for a longer period than ten days." We are of opinion that this ruling was right. It was said in Rogers & Co. v. Simmons, 155 Mass. 259, 29 N. E. 580, that "it is an important principle, founded on considerations of public policy, that the right of officers to charge for the service of a legal process is found only in the statutes, and is limited by their provisions. In Cutter v. Howe, 122 Mass. 541, it was decided that an officer had no right to appoint a keeper of personal property attached, and put him in permanent charge of it, but that it was his duty, as soon as may be after the attachment, to remove the property from the possession of the debtor, and take it into his own immediate possession. Soon after this decision, the legislature passed the Statutes of 1878, c. 272 (Pub. St. c. 161, §§ 42, 43; Id. c. 199, § 6), authorizing the appointment and payment of keepers of personal property attached or taken on execution, and strictly limiting the length of time for which they might be retained, and the price which might be paid them, without a special order of the court. This must be held to cover the whole subject of appointing and paying keepers, and, under a fair construction of it, payment may be made only for the keeper while he is in charge.'" We think that this is the true construction to be given to the act, and that the legislature, in passing this act, intended to deal with the whole subject. It provided what should be done to maintain an attachment by a keeper after 10 days, in place of by removing and storing the goods attached; and although an attachment which is maintained by a keeper after the expiration of 10 days, where the statute is not complied with, is a legal attachment we are of opinion that the act, by omitting to provide that any fee or expenses should be due in such a case, leaves the officer without remedy for the expenses so incurred and for the services so rendered. We have not overlooked that, in the absence of statute, an officer can recover reasonable compensation for services rendered outside of his official duty. See Studley v. Ballard, 169 Mass. 295, 47 N. E. 1000, 61 Am. St. Rep. 286, and cases there cited; also, Shattuck v. Woods, 1 Pick, 171, 175. Exceptions overruled. 1. Where the probate court had jurisdiction to appoint au administrator, a debtor to the estate was not entitled to contest the validity of such appointment in a suit by the administrator so appointed to recover the claim. 2. Pub. St. c. 131, § 3, provides that administration shall not be granted to the public administrator when the husband, widow, or heir of the deceased, in writing, claims the right of administration, or requests the appointment of some other suitable person to the trust; and St. 1891, c. 415, § 4, declares that probate courts shall be considered courts of superior and general jurisdiction, as regards all matters in which authority is given to them. Held that, where a probate decree appointing another than the public administrator as administrator of decedent's estate specifically recited that the widow and the guardian ad litem of the next of kin had assented, it would be presumed, in favor of the validity of such decree, that the court had before it the written request of the widow to such appointment, though the writings annexed to the decree did not amount to such request. Exceptions from superior court, Worcester county; Francis A. Gaskill, Judge. Action by Edward McCooey, as administrator of the estate of Joseph Jawnis, deceased, against the New York, New Haven & Hartford Railroad Company. Verdict for plaintiff, and defendant brings exceptions. Overruled. Thayer & Rugg and Samuel B. Taft, for plaintiff. Wm. C. Mellish, for defendant. BARKER, J. The defendant contends that the appointment of the administrator was void because a public administrator had a statutory right, under Pub. St. c. 131 (Rev. Laws, c. 138), to take letters of administration upon the estate of the deceased. But it was held in Emery v. Hildreth, 2 Gray, 228, where a similar contention was made, that in a suit between an administrator and a debtor of the deceased, and as between those parties, the appointment could not be drawn in question. The decision was upon the ground that the probate court, as also was the fact in the present instance, had jurisdiction to appoint some administrator; that the defendant, as here, had no legal right in the question who should be appointed, and no right to object to the appointment in the court of probate, and a fortiori none after it had been made; and that his rights could not be prejudiced by the appointment of a wrong person, because payment to or a judgment for or against such a person before the appointment was revoked would be a full protection to the debtor. Emery v. Hildreth has been cited often by this court, and never with disapproval. See Jochumsen v. Bank, 1. See Executors and Administrators, vol. 22, Cent. Dig. §§ 178-180, 1675. 3 Allen, 87, 92; Waters v. Stickney, 12 Allen, 1, 11, 90 Am. Dec. 122; Pinney v. McGregory, 102 Mass. 186, 189; Merrill v. Insurance Co., 103 Mass. 245, 248, 4 Am. Rep. 548; City of Boston v. Robbins, 126 Mass. 384, 388; Bassett v. Crafts, 129 Mass. 513, 516; McKim v. Doane, 137 Mass. 195, 196; Miller v. Miller, 150 Mass. 111, 112, 22 N. E. 765. In three of these cases (City of Boston v. Robbins, Bassett v. Crafts, and McKim v. Doane), Emery v. Hildreth was followed by the court, in holding that the appointment of a trustee by a probate court having jurisdiction to appoint a trustee could not be impeached in an action brought by the trustee, or in a suit upon the trustee's bond. These decisions were made before the passage of St. 1891, c. 415, § 4 (Rev. Laws, c. 162, § 2), which enacts that the probate courts shalt be considered courts of superior and general jurisdiction as regards all matters in which authority is given to them, and that enactment certainly takes nothing from the authority of the decisions cited. In our opinion, Emery v. Hildreth is a decisive authority against the contention of the present defendant. Aside from this we are of opinion that the bill of exceptions shows a state of the evidence in which the ruling requested could not have been given. We assume, in favor of the defendant, without so deciding, that the failure of the public administrator to apply for letters for more than seven months after the death of the deceased did not prejudice his right to take out letters upon the estate, and that unless the widow or next of kin requested, in writing, the appointment of some other suitable person, the public administrator was still entitled to the appointment when the petition of April 3, 1900, was filed, and that the writings upon and annexed to that petition did not constitute a written request on the part of the widow or of the heirs for the appointment of the petitioner, within the meaning of Pub. St. c. 131, § 3. Still, by the provisions of St. 1891, c. 415, § 4, and Rev. Laws, c. 162, § 2, the same presumption is to be made in favor of the proceedings of the probate court as would be made in favor of proceedings of other courts of superior and general jurisdiction. The decree of the probate court not only appoints the petitioner, but it specifically recites that "the widow of said deceased and the guardian ad litem of the next of kin have assented." There was no proof that the probate court at the hearing upon the petition did not have before it other evidence than the petition, and the writings upon and annexed to it, that the widow of the deceased had not requested the petitioner's appointment in writing. Non constat that such a written request was not before the probate court, and was not the foundation of the recital in its decree. If the validity of that decree could have been questioned by the defendant in the present case, the presump tion in favor of the validity of the decree would have made it wrong to give the ruling requested, upon the state of the evidence disclosed by the bill of exceptions, and without proof that, when the probate court acted, it had before it no other evidence than that disclosed by the bill of exceptions. Exceptions overruled. lessors to make such repairs as might be ordered in such proceedings. Therefore, the loss of the use of the water power was not a partial eviction or ouster for which the lessors were in any way responsible, and it affords no defense to the action for rent. Judgment for plaintiff for $600. PRATT et al. v. GRAFTON ELECTRIC CO. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 30, 1902.) LANDLORD AND TENANT-LEASE OF WATER MILL-ACTION FOR RENT-GATES OF DAMREMOVAL BY COUNTY COMMISSIONERS-DEFENSE. 1. A lessee in an action for rent of a water mill. under a lease stipulating that the lessor shall not be required to make repairs, and that the lessee shall make the necessary repairs of the gates, cannot defend by showing that the rent accrued after the loss of the use of the water, due to the removal of the gates of the dam by the county commissioners after the lessor had failed to comply with the commissioner's order to repair the gates, pursuant to Pub. St. c. 190, 88 52, 58, authorizing the county commissioners to provide for the safety of dams; there being no implied covenant on the part of the lessor to make such repairs as might be ordered by the commissioners. Report from superior court, Worcester county; Francis A. Gaskill, Judge. Action by Charles L. Pratt and others against the Grafton Electric Company. On report from the superior court. Judgment for plaintiff. John B. Scott and Chas. A. Merrill, for plaintiff. Herbert Parker and Geo. A. Gaskill, for defendant. BARKER, J. Because the gates were rotten and in need of repair, the county commissioners, under the police power conferred by Pub. St. c. 190, §§ 52, 58, removed them, and drew down the waters of the pond, thus depriving the defendant of the use of the water power, which was one of the things demised in the lease. Before removing the gates, the commissioners had made an order that the lessors should repair the gates, and the lessors had omitted to comply with the order. The lease contained these clauses: "The lessor shall not be required to make or pay for any repairs on the leased premises or property, nor to furnish any substitute for the same in case of their destruction, loss, or damage." "The lessee shall make at its own expense all necessary repairs during the term of the lease of the flume, gates, bulkheads, and all leased property, to keep them in proper condition for use." The lease being of a water mill, both parties must be taken to have entered into it in view of the possibility that the water power might be affected by proceedings under the statutes concerning the safety of dams. With express stipulations of the tenor of those quoted, it cannot be said that there was an implied covenant on the part of the CAPEN ▼. LEACH et al. (Supreme Judicial Court of Massachusetts. Hampden. Oct. 30, 1902.) CEMETERIES-BURIAL LOTS-RIGHTS OF OWNERS-TENANTS IN COMMON-EQUITY— PLEADING-DEMURRER. 1. A bill alleging that plaintiff and defendants were heirs and tenants in common of a certain burial lot, and that plaintiff selected a corner of the lot, and erected thereon a monument, which defendants removed, causing injury thereto, did not state a cause of action; for whether the lot was subject to Rev. Laws, c. 78, §§ 26, 27, relating to the control of the lots where the owners do not agree, or whether the parties were merely tenants in common, plaintiff had no right to so erect the monument. 2. No right being shown to erect the monument, the bill would not be retained on demurrer to investigate any unnecessary damage done the monument in its removal. Appeal from superior court, Hampden county. Bill by Meriva L. Capen against William W. Leach and others. From a judgment for defendants, complainant appeals. Affirmed. C. L. Gardner and C. G. Gardner, for appellant. T. W. Kenefick and E. F. Hobson, for appellees. BARKER, J. The bill shows that the plaintiff is one of four heirs at law who are tenants in common of a burial lot in a cemetery in the town of Hampden. Whether the cemetery is one, the lots in which are governed by the statutory provisions now in force, as enacted in Rev. Laws, c. 78, §§ 26, 27, does not appear. The bill alleges that she has selected for the purpose of her burial a corner of the lot, and caused a granite monument to be erected thereon, which the defendants, two of the three persons who are tenants in common with her, have removed, and left exposed and unprotected, thereby causing irreparable injury to the monument. If the cemetery is one governed by the provisions of Rev. Laws, c. 78, §§ 26, 27, the possession, care, and control of the lot were not in the plaintiff alone, but were in common with the four heirs, of whom she was one; and that statute provides the course to be followed in case the four do not agree as to the control of the lot. That course is a designation by the proper officials as to which of the heirs shall represent the lot, in default of such a designation by the heirs themselves. If, on the other hand, the lot was not governed by the statute cited, the plaintiff and the defendants are merely tenants in common. The placing 2. See Equity, vol. 19, Cent. Dig. §§ 116, 117. upon the lot of a granite monument was an exclusive appropriation by the plaintiff of a part of the land to her own use, which the defendants could treat as an ouster, and they might remove the structure from the common land. Bennett v. Clemence, 6 Allen, 10, 18; Ingalls v. Newhall, 139 Mass. 268, 273; Byam v. Bickford, 140 Mass. 31, 34, 2 N. E. 687; Harford v. Taylor (Mass.) 63 N. E. 902. As the bill shows no right in the plaintiff to place or keep the monument on the lot, the demurrer was sustained rightly. If any unnecessary damage was done in the removal, as is, perhaps, alleged argumentatively, the bill will not be retained to investigate that matter alone. Order sustaining demurrer and decree dismissing bill affirmed. HURLEY et al. v. PACKARD. (Supreme Judicial Court of Massachusetts. Plymouth. Oct. 30, 1902.) CONTRACT OF EMPLOYMENT-BREACH-RE- 1. An employé to take orders for shoes got one for goods to be delivered in 22 months, but delayed several days to hand it in. In the meantime the order was canceled. Held, that this not being an event which, according to common experience, was naturally and reasonably to be expected from the delay, the employé was not liable for the damages. Exceptions from superior court, Plymouth county: Jabez Fox, Judge. Action by M. M. Hurley and others against one Packard to recover an amount alleged to be due as plaintiffs' share of profits under an agreement by which defendant was to pay them to take charge of the manufacture and sale of shoes. Verdict for plaintiffs. Defendant excepts. Exceptions overruled. Richard W. Nutter, for plaintiffs. F. M. Bixby, for defendant. LORING, J. In this action the defendant sought to recoup damages caused by the breach of the agreement sued on by one of the plaintiffs. The plaintiffs were employed by the defendant to get orders for his business of manufacturing shoes, and they agreed to "serve" him "well and faithfully." The breach of the agreement relied on by the defendant was in the plaintiff W. M. Hurley not acting promptly in handing in an order given him in New York by one Lambert on December 17, 1900. It appeared that on Hurley's return to the defendant's factory, which was in Brockton, he told the defendant that he had a good order from Lambert, but did not state the details. Hurley's explanation on the stand for not handing in the order promptly was that the order was for 1,769 pairs of shoes, of new styles and descriptions, and that it would take half a day to write it out; that the shoes were not to be delivered until March 1st, and, so far as work in the factory was concerned, there was no need of the order "being in" before January 15, 1901. It also appeared that the factory was shut down about December 26, 1900, to take account of stock and get ready for the next "run," which was to begin on January 1st, or soon after. The plaintiffs' agreement with the defendant ended on December 26th, and on that day Hurley's brother was asked to turn in all property in his possession, and to tell Hurley to do the same. The defendant asked Hurley several times where the order froin Lambert was, "to which he replied that it was in his (said Hurley's) pocket"; meaning that he had notes of it, and that it had not been written out. Lambert testified that he never asked Hurley directly to turn over the order. On December 29th the defendant telephoned Lambert, and asked him if he had given an order to Hurley, and Lambert said that he had, and that he would come to the factory and see him about it on the following Monday, December 31st; but, in place of doing so, he sent the defendant a letter canceling the order on the same day, December 29th, and this was received by the defendant on the 31st at 9 a. m. At 12 m. of the same day, Hurley turned in his keys and delivered the itemized order to the defendant's bookkeeper. The defendant testified that the profit on the shoes would have been 25 cents a pair, and sought to recoup that loss. The presiding judge ruled that the damages were too remote, and directed the jury to return a verdict without deducting anything by way of recoupment. The case is here on an exception to that ruling. The ruling was right. The cancellation of the order by Lambert was not an event which, according to common experience, was naturally and reasonably to be expected in case there was a delay in handing it in; and for that reason the case falls within Hoadley v. Transportation Co., 115 Mass. 304, 15 Am. Rep. 106, and Denny v. Railroad Co., 13 Gray, 481, 74 Am. Dec. 645, and not within Fox v. Railroad Co., 148 Mass. 220, 19 N E. 222, 1 L. R. A. 702, or Johnson v. Faxon, 172 Mass. 466, 52 N. E. 539. Exceptions overruled. TAYLOR v. GODING. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 31, 1902.) LANDLORD AND TENANT-WRITTEN LEASEORAL AGREEMENT-CONTRADICTION. 1. In an action for a balance due on a written lease, an answer setting up an oral agreement made before its execution, that if, during the term, the lessee should take a lease of another building of the lessor, and vacate the building first leased, the lessor would thereon surrender all rights under the first lease, and alleging that the lessee did so lease the other building, and vacate the first, stated no defense, as the agreement contradicted the express contract to pay rent. Appeal from superior court, Worcester county; Edward P. Pierce, Judge. Action by Ransom C. Taylor against Jacob L. Goding. From a judgment for plaintiff, defendant appeals. Affirmed. Taft, Morgan & Stewart, for appellant. Rockwood Hoar, for appellee. LATHROP, J. This is an action of contract on a written lease of a store to recover rent for the last five months of the term. The answer sets up an oral agreement made by the parties before the execution of the lease, that if, during the term, the lessee should take a lease of another store of the lessor, and should vacate the store first leased, the lessor would thereupon surrender all right under the original lease, and the lessee would be under no further liability thereon; that the lessee, relying upon the oral agreement and induced thereby, took a lease of another store of the plaintiff, and vacated the store first leased, before the beginning of the period of five months. To this answer the plaintiff demurred on the ground that the oral agreement contradicted and altered the terms of the written lease, and would be inadmissible in evidence, and that it was no legal defense to the action upon the lease. The superior court sustained the demurrer, and ordered judgment for the plaintiff, and the case is before us on the defendant's appeal. We are of opinion that the oral agreement set up in the answer contradicted and altered one of the express terms of the written contract, namely, that relating to the payment of rent, and that, therefore, the answer set up no defense. Merrigan v. Hall, 175 Mass. 508, 56 N. E. 605, and cases cited. The case is not one of a collateral oral agreement as to a matter not mentioned in the written agreement, and not contradictory of it, and therefore does not fall within Durkin v. Cobleigh, 156 Mass. 108, 30 N. E. 474, 17 L. R. A. 270, 32 Am. St. Rep. 436. Judgment affirmed. MCDOWELL et al. v. ROCKWOOD et al. (Supreme Judicial Court of Massachusetts. Suffolk. Oct. 30, 1902.) MECHANICS' LIENS-RIGHT TO LIEN-NOTICE TO OWNER-MORTGAGES-PRIORITY. 1. Where materials were furnished for a building under a contract with a person holding a contract to purchase, but who had no title to the land at the time, and the contractor did not give notice in writing to the owner of the land that he intended to claim a lien for such materials, as required by Pub. St. c. 191, § 3, he was not entitled to a lien as against a mortgagee of the purchaser. 2. Pub. St. c. 191. § 3, providing that no lien for materials furnished shall attach unless the person furnishing the same, before so doing, gives notice in writing to the owner of the property to be affected by the lien, if such owner is not the purchaser of the materials, that he intends to claim such lien, applies to cases in which labor and materials are furnished to 65 N.E.-5 gether under an entire contract, in which it is impossible to separate the price of the labor from that of the materials. 3. Pub. St. c. 191, § 5, declares that a mechanic's lien shall not avail or be in force against a mortgage existing and duly recorded prior to the date of the contract under which the lien is claimed. Held, that the word "contract" in such section means a contract under which there is an existing right to a lien which may ripen into a lien without further act or concession on the part of the owner; and where the contractor at the time of the execution of a mortgage on the premises was not entitled to a lien for materials thereunder, for the reason that no notice was given to the owner of his intent to claim a lien as required by section 3, the purchaser not being the owner, the contractor was not entitled to a lien as against such mortgagee. Exceptions from superior court, Suffolk county; Jas. B. Richardson, Judge. Petitions by Robert H. McDowell and others against Edward D. Cobb and Jotham C. Rockwood and others to enforce mechanics' liens. Judgment for plaintiffs, and defendant Rockwood brings exceptions. Sustained. Daniel L. Smith, Edwin C. Jenney, and Walter B. Grant, for petitioners. Wm. H. White, for respondent Conant. KNOWLTON, J. These are three petitions to enforce mechanics' liens. The claims in two of them are for labor and materials furnished in the erection of a building under an entire contract for a stated price, and the other is for materials only. The contracts were with a person who was not the owner when they were made, nor during the early part of the time while they were being performed, although he has since become the owner. He has been defaulted in these suits, and the party now defending is a mortgagee who took his title after the contracts were made, and after performance of them was begun, but before it was completed. We may assume, in favor of the petitioners, that there was no error in the trial of the first two issues to the jury, and that, on the evidence and the findings, the petitioners would be entitled to a lien against the owner if the rights of the mortgagee had not intervened. The third issue presented a question whether the labor and materials were furnished with the consent of the mortgagee. He objected to the framing of this issue on the ground that it was immaterial, and appealed from the order of the court directing it to be framed. We may also assume in favor of the petitioners that the proceedings on the trial of this issue were free from error, except for the reason that the issue was immaterial. After the jury had given answers upon these issues favorable to the petitioners, there was a hearing before the court upon an agreed statement of facts and the issues and answers. It appearing that the contracts relied on by the petitioners were not with the owner of the real estate, and that no notice was given of an intention to claim a lien for materials, the respondent requested |