executor to pay a debt in securities specified by the testator or in securities to be selected by the creditor is something more than a direction to the executor to pay the debt. It gives to the creditor (at least at his election) a right to the securities named by the testator or to the securities which the testator has said the creditor shall have a right to select. It is not necessary however to dwell upon this because in the case at bar such a right was given in terms to Mrs. Hill. The transfer and acceptance of these securities by Mrs. Hill was in fact and in law a legacy in payment of a debt. The inheritance tax law of the Commonwealth (St. 1909, c. 490, Part IV, § 1) applies to all cases where property or an interest therein passes by will. It is not confined to cases where property or an interest therein so passes as a gratuity. It includes cases where property or an interest therein passes by will in performance of an obligation resting upon the testator to devise or bequeath the property in question. Clarke v. Treasurer & Receiver General, 226 Mass. 301, or where as in the case at bar the legacy is given in payment of a debt. Not only is this plain as matter of construction of the statute but it is established as a matter of authority in all jurisdictions where (so far as we know) the question has arisen. Matter of Gould, 156 N. Y. 423. v. Craig, 77 N. H. 200. State v. Mollier, 96 Kans. 514. case in New York reviewing the earlier cases see Matter of Kidd, 188 N. Y. 274. See in this connection Turner v. Martin, 7 De G., M. & G. 429.

Carter

For a

The petitioners' last contention is that the exaction of a tax under circumstances of this case would be unconstitutional within art. 1, § 10 of the Constitution of the United States' providing that "No State shall . . . pass any . . . law impairing the obligation of contracts." It is plain from what has been said that this contention is without foundation. The obligation of the contract was that Mrs. Hill should receive and Mr. Hill should pay $250,000 in cash. The tax is due because by his will Mr. Hill gave his wife the option of taking a legacy in satisfaction of her rights as a creditor and she elected to do so.

The result is that the decree of the single justice reversing the decree of the judge of probate must be reversed and the decree of the judge of probate dismissing the petition must be affirmed. It is

So ordered.

FRANK P. CHENEY vs. BOSTON AND MAINE RAILROAD.

Middlesex. November 21, 1916. - June 1, 1917.

Present: RUGG, C. J., LORING, DE COURCY, CROSBY, & CARROLL, JJ.

Interstate Commerce. Jurisdiction.

The courts of this Commonwealth have no jurisdiction of an action involving the construction of a tariff filed by a railroad corporation with the interstate commerce commission until such construction has been passed upon and determined by the commission. Following Loomis v. Lehigh Valley Railroad, 240 U. S. 43. Objection to the jurisdiction of the court over the subject matter of an action may be taken at any stage of the proceedings. In the present case an objection to the jurisdiction of the court was taken for the first time at the argument before the full court.

CONTRACT to recover back certain sums of money paid by the plaintiff to the defendant upon shipments of goods consigned to the plaintiff over the defendant's railroad. Writ dated August 14, 1914.

In the Superior Court the case was tried before Keating, J. At the trial the plaintiff read the auditor's report and rested. Thereupon the defendant rested. The defendant asked for certain rulings, which were refused by the judge. The judge ordered the jury to return a verdict for the plaintiff in the sum of $1,255 in accordance with the finding of the auditor. The defendant alleged exceptions.

R. L. c. 173, § 118, is as follows: "A judgment shall not be arrested for a cause existing before the verdict, unless such cause affects the jurisdiction of the court. After the defendant has appeared and answered to the merits of the action, no defect in the writ or other process by which he has been brought before the court, or in the service thereof, shall be considered to affect the jurisdiction of the court."

J. M. O'Donoghue, (F. N. Wier with him,) for the defendant. W. D. Regan, for the plaintiff.

LORING, J. This is an action brought to recover demurrage charges paid by the plaintiff to the defendant. These charges

were made on interstate shipments of lumber delivered by the defendant to the plaintiff in the city of Lowell. The ground on which the plaintiff seeks to recover is that the charges were in violation of the tariff filed by the defendant with the interstate commerce commission.

During the time in question the plaintiff was a manufacturer of wooden boxes with a factory in Lowell. The lumber in question was delivered by the railroad company on a private track owned by the plaintiff which ran from the defendant's main tracks into his factory. The plaintiff's contention was that, as matter of construction of the defendant railroad company's tariff, demurrage could not be charged on cars of lumber delivered on his private track until the cars actually had been placed upon that track or there had been a "constructive placement" on the track by giving what is called in the tariff a "notice of placement." It appeared that on arrival of the cars of lumber in the railroad yard of the defendant in Lowell the defendant gave the plaintiff a notice which was headed "Freight Arrival Notice" and charged demurrage on giving that notice. It was the contention of the plaintiff that this notice did not operate as a "constructive placement" within the provisions of the tariff. The defendant's main contention was that it was in substance such a notice. In addition the defendant raised other questions as to the true construction of the tariff.

The case was sent to an auditor and after a full hearing upon these issues he decided in favor of the plaintiff. The auditor's report ended with a finding that the defendant owed the plaintiff $1,123 with interest from November 22, 1913. When the case came on for trial the auditor's report was put in evidence and both parties rested. The defendant then asked for seven rulings all of which had to do with matters of construction of the provisions of the defendant's tariff tried before the auditor. These were refused by the presiding judge and an exception taken. The presiding judge then directed the jury to return a verdict for the plaintiff in the sum found by the auditor, and to this ruling an exception was taken. The case was brought here on these exceptions.

At the argument in this court the defendant for the first time took objection to the jurisdiction of the court on the ground that

the construction of the defendant's tariff on interstate commerce filed with the interstate commerce commission was a matter of which no State court had jurisdiction until the true construction of it had been passed upon by the interstate commerce commission. It relies in support of that contention upon Loomis v. Lehigh Valley Railroad, 240 U. S. 43, and the cases there collected. In Pennsylvania Railroad v. International Coal Mining Co. 230 U. S. 184, no question of construction of an interstate tariff was in issue. For that reason it was held that an action could be brought in court before resorting to the interstate commerce commission.

We are of opinion that this contention on the part of the defendant is correct; and, since it goes to the jurisdiction of the court, that it was taken in time. R. L. c. 173, § 118.

Exceptions sustained.

THOMAS W. HARRINGTON vs. HERMAN HINDENLANG &

others.

Suffolk. November 21, 1916. June 1, 1917.

Present: RUGG, C. J., LORING, DE COURCY, CROSBY, & CARROLL, JJ.

Contract, Construction, Of employment. Practice, Civil, Conduct of trial: requests and rulings, judge's charge; Exceptions.

Where, at the trial of an action of contract for an amount alleged to be due under a contract by which a firm of real estate operators employed the plaintiff as a salesman, there is evidence tending to show that the plaintiff was to receive, besides a stipulated amount weekly, one per cent "commission on the sale price of all property owned by them [the employers] which was sold while he was employed by them" irrespective of whether such sale was brought about by his efforts, and that during his employment certain of their property was sold, it cannot be ruled as a matter of law that the plaintiff is not entitled to recover one per cent of the sale price.

At the trial of the action above described, it appeared that an agreement for the sale was executed while the contract of employment was in force, but that when the conveyance was made different arrangements between the plaintiff and the defendants were in force, and the defendant asked for and the judge refused to make a ruling that "The signing of the agreement . . . did not constitute a sale." There was evidence that agreements for sale like the one in question had been treated by the plaintiff and the defendants as sales, and

that adjustments of amounts due to the plaintiff had been made on the basis that they were sales. Held, that the ruling requested by the defendant was refused rightly, as the question, whether the agreement as to the sale was a sale of the property within the provisions of the agreement of employment, was for the jury.

For the same reason, it was held, that an instruction to the jury that "the agreement to buy and sell as set forth . . . was a sale of the property, and that if the agreement between the parties was that the defendants should pay the plaintiff one per cent on all sales made, then he was entitled to recover one per cent on the sale of the . . . property" was erroneous and prejudicial to the defendant.

By an exception, stated to be to a refusal of a judge presiding at a trial to make certain "rulings as requested, and to all parts of the charge which were inconsistent with the requests for rulings," without further specifications, an exception properly is saved to an instruction to the jury contrary to a ruling asked for by the excepting party.

CONTRACT for $1,500 against the defendants as "Trustees of the Securities Real Estate Trust," upon an account annexed, the items of which are described in the opinion. Writ dated March 30, 1915.

In the Superior Court the action was tried before Hall, J. The instrument, referred to in the opinion as "Exhibit 2," was an agreement to sell and convey twelve days after its date the premises described therein. Other material evidence is described in the opinion. At the close of the evidence the defendant asked for the following rulings:

"1. The plaintiff is not entitled to recover on item one of the declaration."

"3. The signing of the agreement to buy and sell the Karlstein property did not constitute a sale of the same."

The rulings were refused. The defendants excepted to the refusal "to grant the rulings as requested, and to all parts of the charge which were inconsistent with the requests for rulings." The jury found for the plaintiff in the sum of $452 and interest; and the defendant alleged exceptions.

The case was submitted on briefs.

J. F. McDonald & J. M. Graham, for the defendants.

J. E. Crowley, for the plaintiff.

CARROLL, J. The plaintiff was a salesman in the employ of the defendants, who were engaged in the business of developing and selling real estate. He was paid $30.07 per week and one per cent "commission on the sale price of all property owned by them