He was asked in cross-examination whether in such a matter he would prefer, qualifications being equal, the opinion of one who had seen the body and performed the autopsy, or one whose information was derived wholly from a narration of facts by others. Construing the question critically, of course his preference was of no consequence. But a fair interpretation of the meaning of the question is that it was designed to elicit his opinion on the point whether facts derived from personal observation afforded a more reliable basis for an opinion than a written description of those facts. Such an inquiry is not directed to a comparison of the value of the testimony of divers witnesses, but to the very different end of ascertaining the best way to discover the facts on which to ground an opinion. Moreover, the answer to the effect that 'being accurate, I would be equally satisfied with their report, was not harmful to the defendant.

A witness cannot be required to express an opinion as to the relative or absolute value of testimony from several experts either as compared with each other or with himself. The reliability of testimony from different sources cannot be magnified or disparaged in this way. Expert testimony cannot itself be made the subject of expert testimony. The weighing of evidence is within the exclusive province of the jury. The cross-examination of this witness did not transcend this rule. He was interrogated as to the grounds for a difference in the progress of digestion in the stomach of food eaten at different hours before observation. The examination as to the effect of rigor mortis did not exceed the fair limits of cross-examination in view of the knowledge of the witness.

There was no error in the exclusion of the question to Anna Russ whether the deceased "seemed to take any interest in her housekeeping." Easily observable facts capable of being accurately and fully stated in simple and intelligible words must form the foundation of any inference respecting such a matter. The facts ought to be narrated in evidence and the jury left to form their own opinion. Noyes v. Noyes, 224 Mass. 125, 129. Facts of that nature were stated in Commonwealth v. Piper, 120 Mass. 187. The witness was permitted in the case at bar to testify in detail as to the facts of the conduct of the deceased.

The same witness was asked by the defendant if she ever had

heard of Emily having been cut with a knife." The answer was "No." This evidence was immaterial as well as incompetent, but no objection was interposed and it was received. The district attorney then cross-examined the witness respecting this matter and, subject to exception, she was allowed to testify that two persons had told her that there were two scars made by cuts on the breast of the deceased. It was within the sound discretion of the judge whether and to what extent the contradiction of immaterial testimony should be allowed. Bennett v. Susser, 191 Mass. 329, 330. Commonwealth v. Wakelin, 230 Mass. 567, 576. The decision in Menage v. Rosenthal, 175 Mass. 358, related to a different point.

The inquiry whether the deceased was talkative or self-contained does not appear to be relevant to any issue on trial and was excluded rightly.

At one point in the cross-examination of the defendant the district attorney held in his hands a book which he opened and looked at, but did not show to the witness or the jury while asking questions as to the ability of the witness to draw pictures with a pencil. Nothing was developed beyond an admission of very slight capacity in that particular and that line of inquiry was abandoned. It is argued that this was a mere piece of acting for the purpose of indirectly instilling into the minds of the jury the notion that the defendant was an erotic pervert or generally depraved in mind, when proof was utterly lacking or incompetent in form or irrelevant in substance. It goes without saying that, if the incident were justly susceptible of this construction, it would be the plain duty of the judge sternly to repress the line of inquiry and to take sedulous pains to remove every vestige of its effect from the minds of the jury. But the printed report conveys no such impression to our minds. There appear to have been only a few questions wholly preliminary in their nature, which were not followed up and which seem as left to have been quite colorless and unprejudicial.

Evidence of the fact that the defendant had been at the stationhouse before his arrest for the crime here charged was admitted simply in connection with his general familiarity with the place and not to show bad reputation, evil character, or previous criminal conduct. Nothing further than this appeared before the

jury. That fact did not of itself indicate that he had been arrested or went there involuntarily. It had a bearing upon the emotions, whether of fright or otherwise, which the defendant might have experienced in being taken there and in making his statement to the police officers. It cannot be held that this prejudiced the rights of the defendant by tending to show that he was of bad character or by violating the rule that cross-examination to affect a defendant's credibility cannot extend to transactions irrelevant to the issue on trial. Commonwealth v. Schaffner, 146 Mass. 512, 515. Schmidt v. Schmidt, 216 Mass. 572, 578. Much must be left in this connection to the discretion of the trial judge. Jennings v. Rooney, 183 Mass. 577, 579. Comstock v. Biltmore Amusement Co. 227 Mass. 146, 150.

The cross-examination of the defendant is said to have lasted about three hours. It does not appear that it was unduly prolonged or was devoted to provoking the witness into exhibition of anger or to other prejudicial ends. The part of it directed to the development of reasons for calling one and not others of his neighbors on the evening of August 23, after discovering the death of his wife, cannot be pronounced erroneous. The duty of the presiding judge is the heavy one of not permitting any unjust advantage to be taken by either side, and of seeing that there is a fair trial. While he ought to restrain frivolous, unfair or excessive examination of witnesses, on the other hand cross-examination must be allowed so far as reasonably likely to develop the truth. Tildsley v. Boston Elevated Railway, 224 Mass. 117, 119.

The defendant appealed from the order of the presiding judge denying a motion for a new trial based on allegations that the verdict was against the law, the evidence, and the weight of the evidence. The granting of a motion for a new trial rests in sound judicial discretion. That discretion cannot be reviewed by this court. Simmons v. Fish, 210 Mass. 563, 565, 572. Commonwealth v. Turner, 224 Mass. 229, 238. Massachusetts Bonding & Ins. Co. v. Peloguin, 225 Mass. 30. The argument chiefly urged by the defendant is that a verdict of guilty in the second degree must as matter of law be held to be a compromise verdict under the circumstances here disclosed. It cannot be held on this record that a verdict of guilty in the second degree was not rationally possible as matter of law. Hence in this respect there is no error of law.

A motion also was filed to set aside the verdict and to grant a new trial on the ground of newly discovered evidence. This motion was supported by affidavit. It was agreed that the affiant testified at the hearing upon the motion. The newly discovered evidence as disclosed on the record would have been admissible and pertinent if introduced at the trial. But the granting of a motion for a new trial on this ground ordinarily rests on sound judicial discretion both in criminal and civil cases and is not subject to review. Commonwealth v. Borasky, 214 Mass. 313, 322, and cases there cited. Berggren v. Mutual Life Ins. Co. of New York, 231 Mass. 173, 176, 177, and cases there collected. See, in this connection, Hip Foong Hong v. H. Neotia & Co. [1918] A. C. 888, 894. There is nothing on the present record to suggest an abuse of discretion or any error of law.

This record has been examined with great care in the light of the able argument and exhaustive brief in behalf of the defendant. We are constrained to say that no error appears.

Exceptions overruled.

Orders denying motions for new trial affirmed.

CHARLES J. MCINTIRE, JUDGE OF PROBATE, vs. CHARLES S. ENSIGN, JR., & another.

Middlesex. November 21, 1918. January 23, 1919.

Present: RUGG, C. J., LORING, BRALEY, PIERCE, & CARROLL, JJ.

Guardian. Bond, Of guardian.

An action upon the probate bond of a guardian of an insane person, begun after the ward has been adjudged sane and the guardianship has been terminated but before a final decree has been entered upon an alleged final account of the guardian, which has been filed, and alleging as the breach of the bond relied on a failure to deliver all the ward's property to him, is prematurely brought and, after a hearing disclosing such facts, judgment therein must be entered for the defendant.

CONTRACT upon a guardian's bond filed by the defendant Charles S. Ensign, junior, as principal, and the defendant, the Title Guaranty and Surety Company, as surety, in the Probate Court for the county of Middlesex, the breach of the bond alleged

in the declaration being that the defendant Ensign as principal failed to pay over and to deliver to the ward, Josephine Faxon, upon the expiration of his trust as her guardian all the estate due from him to her as such guardian.

The answers of the defendants alleged, besides general denial and payment, that there was pending in the Probate Court for the county of Middlesex the ninth account of the defendant Ensign as guardian, that no decree had been entered on said account adjudicating that anything was due from him to her, and that, until a decree was entered by the Probate Court on that account, no action on the bond could be maintained, for the reason that the questions, whether anything was due from Ensign as guardian and, if so, how much was due, were within the exclusive jurisdiction of the Probate Court.

The action was heard by Fox, J., upon an agreed statement of facts. The defendants asked the judge to rule as follows:

"1. On all the evidence, there has been no breach of the guardian's bond.

"2. On all the evidence, the plaintiff is not entitled to recover. "3. An action cannot be maintained on the guardian's bond for his failure to turn over property of the estate to Miss Faxon, until the Probate Court shall have passed upon his ninth account and entered a decree thereon."

The judge refused to rule as requested and found for the plaintiff in the penal amount of the bond. The defendants alleged exceptions.

G. M. Poland, (L. P. Jordan with him,) for the defendants.
C. M. Bruce, for the plaintiff.

BRALEY, J. The bond declared on was given under R. L. c. 149, § 1, cl. 6, and by the fourth condition the principal as the probate guardian of his ward, who in the case at bar was an insane person, is required "At the expiration of his trust to settle his account in the Probate Court or with the ward or his legal representatives, and to pay over and deliver all the property remaining in his hands or due from him on such settlement, to the person or persons lawfully entitled thereto."

A guardian, if living, is not discharged unless payment has been made or the property delivered either to the ward or his legal representatives, or to his successor in office if a successor is ap