cases in note. McClellan v. Carland, 110 C. C. A. 49, 53. It is desirable that so far as practicable the same rule of practice upon a point like this should prevail in the State and federal courts exercising concurrent jurisdiction. The rule that the pendency of an action in a court of one jurisdiction is not an absolute bar to the maintenance of another action for the same cause in another jurisdiction has been recognized in Lindsay v. Larned, 17 Mass. 190. It seems on the whole a just rule. The federal and State courts even within the same Commonwealth exercise a jurisdiction derived from different sovereign powers. Since the rule upon this point is settled for the federal courts, we adopt it without further discussion. The pendency of one is not an absolute bar to the maintenance of the other.

2. The next question is whether a plaintiff of right has unrestrained liberty of action in this regard, subject to no control by the courts over his invocation of their proceedings. It is elementary that courts of the same jurisdiction will not permit a party to be vexed at the same time by two proceedings arising from the same cause of action, unless there is some sound reason having its foundation in justice for an exception to the general rule. The stringency of the common law rule against the concurrent pendency of two or more proceedings for the same cause has been relaxed somewhat in order to prevent a plaintiff from failing in the prosecution of a just claim because of doubt or mistake as to the right form of relief and perhaps for other reasons. But the rule against vexatious actions still remains. Manifest justice requires that a defendant be not hectored by useless and unnecessary litigating. Manufacturers' Bottle Co. v. Taylor-Stites Glass Co. 208 Mass. 593. Spear v. Coggan, 223 Mass. 156. That is a sound and salutary doctrine. It is the correlative of the principle that a plaintiff ought to find a certain remedy by having recourse to the courts for all wrongs suffered by him in his person, property and character. It is a part of the liberty of a citizen of a free government that he be protected against wrongful harassment by others. Therefore, where two actions are pending between the same parties for the same cause within the same governmental unit, one in the federal and the other in the State court, we do not conceive it to be the law that the plaintiff has an absolute right to maintain both up to the point of obtaining a final judgment.

The establishment of such an inflexible rule might work great hardship in some cases. Justice requires the court in which the point is raised to determine, after an examination of the merits in this respect, whether the defendant is in truth being doubly vexed by the contemporaneous prosecution of both actions, and make appropriate order in the light of what is revealed by such an inquiry. That proposition has been declared broadly in well considered judgments, even with reference to an action pending in a foreign country, in McHenry v. Lewis, 22 Ch. D. 397, and in The Christiansborg, 10 P. D. 141. There is an intimation in the same direction in Merrill v. New England Mutual Life Ins. Co. 103 Mass. 245, 248, 249. But without deciding more than is raised by the present record, it is the duty of this court to ascertain from all the circumstances whether the maintenance of these two cases ought to go forward simultaneously and, if not, what ought to be done, having regard to the "fundamental ethical rules of right and wrong." Robinson v. Mollett, L. R. 7 H. L. 802, 817.

3. In the case at bar the law that will be applied to the decision of the merits of the cause of action is the same in the federal as in the State court. The same system of law is administered as to matters within their concurrent jurisdiction. That system is the jurisprudence of this Commonwealth. That arises from the fact that there is no common law of the United States, and the general law administered by the federal courts is that of the several States in which they may be sitting. There is no doubt as to the principle, even though there may be differences of view as to what that law is. Smith v. Alabama, 124 U. S. 465, 478. Ex parte McNiel, 13 Wall. 236, 243. Burgess v. Seligman, 107 U.S. 20, 33, 35. Sim v. Edenborn, 242 U. S. 131, 135. No question arises in the present case as to ease of obtaining jurisdiction over the defendant, such as was suggested in Hatch v. Spofford, 22 Conn. 485, 499, because the defendant resides equally within the jurisdiction of both courts. Several reasons are put forward in argument in favor of the plaintiff's contention. One is that in the federal court, by reason of having brought an action at law, it has a constitutional right to a trial by jury, while in a suit in equity as plaintiff it has no such absolute right. That is true; but if it desires a trial by jury it would have been equally entitled to that in our courts in an action at law. Another reason urged

is that under the federal practice it may as of right take depositions of non-resident witnesses upon oral interrogatories, while in our courts such depositions upon oral interrogatories may be taken only in the discretion of the court. A further reason is suggested to the effect that the extent of an equitable attachment permitted by our law upon a bill to reach and apply is far more extensive than that permitted in the federal court. See Stockbridge v. Mixer, 215 Mass. 415, and Rioux v. Cronin, 222 Mass. 131, 137139.

Summarily stated, the position of the plaintiff is in substance, as disclosed by its argument, that it desires to proceed in the federal court in order to be certain of its trial by jury and of its right to take depositions of non-resident witnesses on oral interrogatories, and at the same time to secure at the outset the extraordinary advantages of equitable attachments afforded only by our law, an attachment which it would seek to enforce, if it ultimately prevails in the federal court, by invoking the further equitable doctrine that by amendment to the present bill it can bring to the attention of the court that fact (of judgment in its favor in the federal court) occurring since the institution of this suit, and ask that the ultimate relief afforded be fitted to the state of facts existing after it has established its right in the action at law in the federal court; all this to be done under the principle declared in Collins v. Snow, 218 Mass. 542, Hanscom v. Malden & Melrose Gas Light Co. 220 Mass. 1, 9, and similar cases.

The trial by jury was open as of right to the plaintiff equally in either the State or federal court. It is as secure under the Constitution of Massachusetts as of the United States. But it is settled that where a plaintiff resorts to equity he cannot thereafter as of right have a trial by jury, the framing of issues in such case resting in the discretion of the court. Culbert v. Hall, 181 Mass. 24. Perhaps at least as stringent a rule in this regard prevails in the federal court. All these other contentions relate to practice and procedure and not to substantive rights.

Stated otherwise, the plaintiff's real contention is that it may by instituting two proceedings gain all the advantages of practice and procedure afforded by the courts of both jurisdictions, and thereby combine benefits of procedure to which it is not entitled in courts of either jurisdiction alone.

It is in truth undertaking to use the extraordinary process to reach and apply the property of a debtor provided by our statute, which does not prevail generally and is not a part of ordinary equitable jurisdiction, as an adjunct to the main cause prosecuted in the federal court. That statute was not designed for such a purpose. That statute was designed to afford its unusual benefits to a creditor who invokes the jurisdiction of our courts to establish his debt. It is not a statute which offers its unusual process as ancillary to proceedings to establish the main debt in another court, or in the court of another jurisdiction. There is a well known equitable remedy for the collection of a judgment by means of a creditor's bill. But that is not the remedy provided by this statute and it cannot be instituted until a judgment has been obtained.

This result, although not required by Sandford v. Wright, 164 Mass. 85, as matter of authority, is a logical extension of the doctrine there established.

It was unduly vexatious for the plaintiff to undertake to maintain contemporaneously the two proceedings under these circumstances. The pendency of the action in the federal courts was not a bar to the maintenance of the present suit, but both ought not to be prosecuted simultaneously. The single justice rightly put the plaintiff to an election. When that was refused, the order for final decree followed correctly.

Order for interlocutory decree affirmed.
Order for final decree affirmed with costs.

LYNDE SULLIVAN, assignee of HELEN SULLIVAN, 28. INHABITANTS OF ASHFIELD.

SAME US. SAME.

LYNDE SULLIVAN, assignee of HELEN L. SULLIVAN, vs. INHABITANTS OF ASHFIELD.

Present: RUGG, C. J., BRALEY, DE COURCY, CROSBY, & PIERCE, JJ.

Tax, On personal property of non-resident. Evidence, Presumptions and burden of proof, Matters of common knowledge. Words, "Farming utensils," "Merchandise."

Where there is any personal property of a non-resident that is taxable in a town in which it is situated, the only remedy of such non-resident for excessive taxation is by a petition for an abatement, and it is immaterial whether the over-assessment arises from a too high valuation of the property actually owned there by the taxpayer or from the inclusion of other property not owned by the taxpayer or not taxable by that town.

In an action by a woman, whose residence is in a foreign country, against a town in this Commonwealth where the plaintiff has a country place at which she lives in summer, to recover a tax on personal property paid by the plaintiff under protest, the burden rests on the plaintiff to show that when the tax was assessed she had no personal property in that town that was subject to taxation there; and, if in such action the son of the plaintiff has testified that "there were two horses on the place, but was not sure of this; that, if there were, they belonged to his mother," a finding is not warranted that the plaintiff had no personal property taxable in the town when the tax was assessed.

In another action between the same parties to recover a tax assessed for a different period, there was undisputed evidence that during the period for which the tax was assessed the plaintiff owned and kept in the town a horse lawn mower, which "consisted of a large iron roller behind a cut-bar, and was always run by a horse," and which was "about six feet in width, with a roller edge and knife, and required a horse for motive power," and it was held that this machine was not exempted from taxation as a "farming utensil" under St. 1909, c. 490, Part I, § 5, cl. 11, and that under St. 1909, c. 516, § 2, it was taxable to the plaintiff as a person not an inhabitant of this Commonwealth in the town in which it was situated.

It is a matter of common knowledge that a horse lawn mower such as described above is not found usually among the tools and implements of a farmer, and that its ordinary use is not directed to the practice of husbandry nor to the promotion of agriculture.

In another like action brought by the daughter of the plaintiff in the action above described against the same town also to recover a tax on personal property paid under protest, there was evidence that there was furniture in the house in which