HIGHWAY.

1. Work having been done in repairing a way and not as original construction or as specific repairs, the verdict should have been for the petitioner, as the petition was seasonably brought under Pub. Sts. c. 52, §§ 15, 16. Albro v. Fall River, 590.

2. If a change of grade is made by an authority competent to establish the grade, and the nature and extent of the change are specifically declared in the proceedings, the work is a specific repair under Pub. Sts. c. 49; but if the work is done or ordered by an authority which does not have the power to establish the grade, or if done or ordered by such an authority, the order does not specify the nature and extent of the change, and the change is made under an authority competent to direct the repair of ways so that they may be safe and convenient for travellers, the change is made under Pub. Sts. c. 52, and the damages are recoverable under that chapter. Ibid.

3. On a petition, under Pub. Sts. c. 52, §§ 15, 16, for a jury to assess damages occasioned by raising the grade of a street in front of the petitioner's premises by a street railway company in the construction of its railway, it appeared that the act of raising was that of the railway company alone and was not something done for the purpose of keeping the way safe and convenient for travel; and the evidence did not even show that it was done to the satisfaction of the superintendent of streets, much less that it was done by him or by the city. Held, that the judge rightly ordered a verdict for the respondent. Vigeant v. Marlborough, 459.

4. If, in an action under Pub. Sts. c. 52, § 18, for injuries occasioned to a traveller on a highway, there is no evidence that the defendant knew of the defect if there was one, in the absence of evidence to show how long it had been there, it cannot be said that the defendant ought, in the exercise of reasonable care and diligence, to have known of it and remedied it. Parker v. Boston, 501.

5. In this case, which was an action for personal injuries occasioned to the plaintiff by falling into an excavation ten feet in length between the rails of a street railway track where the defendant city was building a tidewater in a sewer, the defendant being engaged in a lawful work, having erected barriers with signs to show that the way was not open to public travel, having had a watchman on the spot night and day, and what happened not reasonably being expected to happen, it cannot be said that there was any want of the "reasonable care and diligence" required by the Pub. Sts. c. 52, § 18. Martin v. Chelsea, 516.

See CITY; DEED, 2; EMINENT DOMAIN; GRADE CROSSING; RAILROAD COMMISSIONERS, 2; Town, 1.

HUSBAND AND WIFE.

If, in an action for board furnished to the defendant's wife, it appears that she was homeless, had been deserted by the defendant without justifiable cause, had no personal property, and had such an interest in real estate

that she could not realize upon it so as to relieve her distress, a ruling that "the wife having property of her own the husband was not liable for necessaries furnished to her without his knowledge or assent by one who knew the wife's circumstances" is rightly refused, and a finding for the plaintiff is correct. Prescott v. Webster, 316.

See CONTRACT, 1; DIVORCE; Equity, 7; ESTATES OF PERSONS DECEASED, 2; NULLITY OF Marriage.

ICE.

1. Ice is not included in the term "provisions," within Pub. Sts. c. 68, § 1, permitting any person to go from place to place in the same town exposing for sale and selling provisions. Commonwealth v. Reid, 325.

2. Driving a load of ice through the streets of a city, calling out " Ice,” and twice selling ice to a person standing in the street who then and there paid for the same, is sufficient evidence that the one doing these acts was going from place to place carrying and exposing merchandise for sale; and the fact that he did this as an employee of a solvent corporation which not only sent out a cart to peddle ice, but also delivered ice to persons who had previously ordered the same, and the further fact that the occupants of the house to which the purchaser above mentioned had directed the ice bought by him on the street to be delivered, were among the customers in the list handed by the corporation to the employee, do not make his actions any the less a violation of Pub. Sts. c. 68, § 16. Ibid.

3. In view of the fact that the defendant in a complaint for unlawfully carrying and exposing ice for sale was seen driving along a street and calling out "Ice," sales made by him on the street are evidence on which the jury are warranted in finding that selling ice from a wagon driven by him was within the general scope of his business. Ibid. 4. The fact that the defendant in a complaint for unlawfully carrying and exposing ice for sale, some time after the sales shown in evidence were made, ceased to be employed by the corporation in whose employ he then was, shows that he was employed temporarily in the established business of that corporation, and not that, at the time in question, he was engaged in a temporary or transient business, within St. 1890, c. 448; and, if he were engaged temporarily in peddling ice for that corporation, he is guilty of a violation of Pub. Sts. c. 68, § 16. Ibid.

5. Evidence that a person in the employ of a corporation drove through a street, calling out "Ice," and sold ice from the wagon to a person on the street who paid for the same, does not tend to prove that the former was an itinerant vendor, within St. 1890, c. 448, but tends to show that he was peddling ice for the corporation, which also conducted an established business in selling ice. Ibid.

6. A complaint, alleging that, on a day named, at Boston, the defendant "did sell to the complainant," in a certain street, "a certain article, to wit, a piece of ice, said complainant being then and there on said street,

and said defendant not then and there having a permit from the superintendent of streets of said city of Boston to sell as aforesaid," sufficiently describes a violation of Rev. Ord. of Boston of 1890, c. 43, § 35, within Pub. Sts. c. 213, § 17, providing that in such a case the by-law on which the complaint is founded need not be set forth. Commonwealth v. Reid, 325.

See COMPLAINT, 2.

ILLEGALITY.

See CONTRACT, 1, 2.

IMPRISONMENT.

See INDICTMENT; SENTENCE.

INDICTMENT.

It is no objection to the sufficiency of an indictment under the habitual criminal act, St. 1887, c. 435, that the sentence imposed upon the second previous conviction alleged in the indictment took effect from the expiration of the sentence imposed upon the first previous conviction alleged, so that there was no interval of liberty between the two terms of imprisonment. Commonwealth v. Richardson, 202.

See COMPLAINT, 2; CONFESSION; EVIDENCE, 4; Perjury, 2.

INDORSEMENT.

See PROMISSORY NOTE, 1.

INFANT.

An infant cannot be held liable in tort for deceit or conversion the proof of which requires the plaintiff to show that a contract, which by the infant's false representations relative to his age he was induced to make and perform, was part and parcel of the fraudulent transaction. Slayton v. Barry, 513.

See BASTARDY PROCESS, 3; EVIDENCE, 14, 15; WITNESS.

INJUNCTION.

See CONTRACT, 4; EQUITY, 1, 4.

INSANITY.

See APPEAL, 8; ESTATES OF PERSONS DECEASED, 6; WITNESS.

INSOLVENCY.

A. made a promissory note to B. and gave him a mortgage of real estate as security therefor. B. indorsed the note and assigned the mortgage to C. Held, on the insolvency of B., that C., who declined to deliver up the mortgage, had no mortgage or pledge of the estate of B., and hence was not forbidden or restrained in his proof by Pub. Sts. c. 157, § 28, or by any other provision of the statute. Hale v. Leatherbee, 547.

See ESTATES OF PERSONS DECEASED, 1; INSURANCE, 3; JUDGMENT, 3; PARTNERSHIP, 2.

INSTRUCTIONS.

See EMPLOYERS' LIABILITY ACT, 3; EVIDENCE, 25; EXCEPTIONs, 2; MASTER AND SERVANT, 12; NEGLIGENCE, 7, 14; TRIAL, 3, 7.

INSURANCE.

1. The writ in an action upon an award made under a policy of fire insurance was dated three days before the expiration of the time limited in the policy for bringing an action, but it was not served until about fifty days afterwards, and was duly entered at the next entry day. Two witnesses testified that they saw the writ on the day of its date. Held, that the action was seasonably commenced. Farrell v. German American Ins. Co. 310.

2. In this case, which was an action on a policy of insurance containing a provision that it should be void, if, without the assent of the insurance company, "the premises hereby insured shall become vacant by the removal of the owner or occupant, and so remain vacant for more than thirty days without such assent," the judge was justified, on the evidence, in refusing to rule, as matter of law, that the plaintiff was not entitled to recover and in submitting the question to the jury. Johnson v. Norwalk Fire Ins. Co. 529.

3. A person was insured in an assessment insurance company against loss of time by reason of accidental bodily injuries at a certain rate per week, or, in case of death resulting from the injuries within ninety days there. after, for a stated sum. He received accidental bodily injuries on June 28, and died as a result thereof on August 31; a receiver of the company having been appointed in the interim on August 12, on a bill filed August 9. Section 14 of St. 1890, c. 421, provides that in case of insolvency any unexpended portion of the emergency fund is to be first applied in the payment of "accrued claims." Held, that the claim for death was not an accrued claim, and that claims for disability were divisible and had accrued only to the time of the filing of the bill. Attorney General v. Equitable Accident Insurance Association, 196.

See AWARD; DECLARATION, 2, 4; TRUSTEE PROCESS.

INTEREST.

See ASSIGNMENT.

JUDGE.

See COVENANT; EVIDENCE, 15; FORCIBLE ENTRY AND DETAINER, 2, 4; HIGHWAY, 3; MALICIOUS PROSECUTION; NEW TRIAL; TRIAL, 1, 4, 6, 9, 10, 12, 13; TRUST AND TRUSTEE, 4; WItness.

JUDGMENT.

1. While a judgment must not be for damages in excess of the ad damnum, it may give costs in addition to that amount. French v. Goodnow,

451.

2. In an action begun in a police court by trustee process, the plaintiff, by taking judgment against the defendant alone, discontinues as against the trustee and waives all right to pursue him further, and, the trustee being thereby discharged, the fact that he was afterwards defaulted for not appearing is an error of the clerk which cannot affect the validity of the judgment rendered against the defendant. Dalton-Ingersoll Co. v. Fiske, 15.

3. If the plaintiff in an action pending in a police court puts it on the trial list and gives the required notice to the defendant, who fails to appear, the latter may be defaulted and judgment may be entered against him, although a motion for continuance to await the result of insolvency proceedings is pending. Ibid.

See ABSENT DEFENDANT, 1-3; APPEAL, 4; CITY; COURT OF REGIStraTION; DECLARATION, 3; EXECUTION; MECHANIC'S LIEN, 4, 6; MONEY PAID; RETURN; SCIRE FACIAS, 2; STAY OF PROCEEDINGS; SUPERIOR COURT; TRIAL, 14; TRUSTEE PROCESS.

JURISDICTION.

See ABSENT DEFENDANT, 4; APPEAL, 5; BASTARDY PROCESS, 2; DEPOSITION; EQUITY, 6; PROBATE COURT, 1.

JURY.

See ASSIGNMENT; EMPLOYERS' LIABILITY ACT, 3, 6; EVIDENCE, 25; EXCEPTIONS, 3; HIGHWAY, 3; ICE, 3; INSURANCE, 2; MORTGAGE, 1; NEGLIGENCE, 2, 4, 6, 9, 11; PRINCIPAL AND AGENT, 2; TRIAL, 1, 7, 9, 10; WAIVER.

LANDLORD AND TENANT.

See DEED, 2; TENANT AT SUFFERANCE; WRIT OF ENTRY, 2.