O'Brien v. The State. before us, there is no forfeiture of the policy. Its operation is supended merely while the house is vacant. It becomes again operative on its reoccupancy. It seems to us, that it was intended by the parties that the policy should mean what it said, and apply to short intervals of non-occupancy. The cases cited by the appellee are not in point. The judgment is reversed, with costs, and the cause remanded for proceedings in accordance with this opinion. 63 242 149 235 O'BRIEN V. THE STATE. LIQUOR LAW.-Sale Without License.—Indictment.—Supreme Court.—Practice. An indictment for retailing intoxicating liquors without license charged the defendant with having made a certain sale, without "then and there having a license from the board of commissioners" of the county wherein the sale was made. Held, that the indictment is insufficient. Held, also, that the sufficiency of an indictment may be questioned, for the first time, in the Supreme Court, on appeal. From the Benton Circuit Court. M. W. Walker, for appellant. T. W. Woollen, Attorney General, for the State. NIBLACK, J.-This was a prosecution for unlawfully retailing intoxicating liquor. The indictment charged, that John O'Brien, the appel lant, on the 28th day of August, 1877, at the county of Benton, sold to one John Gillespy one half pint of intoxicating liquor, to be drank in his, the said O'Brien's, house, without "then and there having a license from the board of commissioners of Benton county to sell intoxicating liquors in a less quantity than a quart at a time, with the Smith et al. v. Peterson et ux. privilege of allowing the same to be drank on the premises where sold.” Upon a plea of not guilty, there was a trial by a jury. A verdict was returned finding the appellant guilty as charged in the indictment, and assessing his fine at twenty dollars; and a judgment of conviction was rendered upon the verdict. Errors are assigned here, raising the question of the sufficiency of the indictment. The indictment in the case now before us was in all respects similar to the one presented to us in the case of Meier v. The State, 57 Ind. 386, which was held to be bad because the allegation of the appellant's want of a license. from the board of commissioners of Benton county was not equivalent to an averment, that he was not licensed by any competent authority, which averment is necessary in an indictment for retailing intoxicating liquor without a license, as the circuit court may, in certain cases, upon appeal, order a license to be granted; and, upon the authority of that case, the indictment in the case at bar must be held to have been insufficient to support a conviction upon it. See, also, Henderson v. The State, 60 Ind. 296. In this latter case we held, amongst other things, that the sufficiency of an indictment might be attacked for the first time in this court, and to that decision we still adhere. The judgment is reversed, and the cause remanded, with instructions to quash the indictment. SMITH ET AL. v. PETERSON ET UX. HUSBAND AND WIFE.-Goods Purchased by, Wife in another State.-Common Law.-Statute of Foreign State.-Presumption.—Rights of Property.—Exe Smith et al. v. Peterson et ux. cution. Certain household goods, purchased by a married woman, with her own means, and used in her husband's household, in another State, were removed by them into this State, where they were seized upon an execution against a third person. Held, in an action by the wife and her husband, to try the rights of property, that it is presumed, the contrary not being alleged and proved, that the common-law rule, vesting such goods in the husband, prevailed in such other State, and that, for want of title in herself, she can not recover. From the Clarke Circuit Court. P. H. Jewett and C. L. Jewett, for appellants. BIDDLE, J.-Action to try the right of property. The goods, consisting of household furniture, were levied on by Schell, as constable, by virtue of a writ of restitution. issued by the justice of the peace, at the suit of Jane Smith, as the property of Thomas R. Lord and his wife, and claimed as the property of Jane Peterson, who brings this action, joining Peter Peterson, her husband, in the complaint. No question is made upon the pleadings. The claimant failed before the justice of the peace, and judgment was rendered against her. She appealed to the circuit court, wherein, upon a trial by the court, a finding was had in her favor. By a motion for a new trial, two questions are brought here for our decision: Is the finding sustained by the evidence? Is the decision contrary to law? The evidence shows that Jane Peterson is, and has been for many years, the wife of Peter Peterson; that she purchased the goods in controversy, during coverture, in the State of Kentucky, by means furnished to her by her brother; that the property was received into the household of the husband, in the State of Kentucky, and used for the common benefit of the family: that some years since they removed into the State of Indiana, from the State of Kentucky, bringing the goods with them, where they were levied on, as stated in the complaint; that they The Tell City Furniture Co. v. Nees. have lived together as husband and wife ever since their marriage, in 1843. There is no evidence in the record tending to contradict the above facts; we have, therefore, no question concerning the conflict of evidence to decide. The question is, does that state of facts show the property of the goods to be in Jane Smith? By the common law they would be the goods of the husband. No statute or law of Kentucky changing the common law was either alleged or proved at the trial, and we can not judicially know that there is any such statute or law in Kentucky; we must, therefore, presume that the common law, as to the rights of property between husband and wife, is yet in force in Kentucky. As, by this law, the goods belonged to the husband while in Kentucky, his removal to this State, bringing them with him, did not divest his right in the goods. Lichtenberger v. Graham, 50 Ind. 288. As Jane Peterson has not shown herself to be the owner of the property, and entitled to its possession, she is not entitled to judgment in her favor. Philbrick v. Goodwin, 7 Blackf. 18. The judgment is reversed, at the costs of Peter Peterson; cause remanded, with instructions to sustain the motion for a new trial, and for further proceedings according to this opinion. THE TELL CITY FURNITURE COMPANY v. NEES. CORPORATION.-Articies of Association.—Stipulation as to Payment of Wages. -Interest.-A stipulation in the articles of association of a corporation organized under the laws of this State, providing that each member of the association "shall receive his wages in cash, if demanded, and the treasury will allow it," and that a specified rate of interest shall be allowed him on a "balance" of a certain amount due him, is binding upon each of such members. SAME. Words and Phrases.-The term "wages," as used in such stipulation, The Tell City Furniture Co. v. Nees. reasonably includes wages due to a member for work and labor performed by him for the corporation. SAME.-Demand.-Recovery for such wages can not be had by a member of such corporation unless he first make demand therefor, and the condition of the treasury is such that payment can be made. SAME.—Plea in Abatement of Action.—An answer setting out such stipulation, and averring that the plaintiff was and is a member of the corporation, that the matter in suit is wages for labor performed by him, that he had made no demand, and that the condition of the treasury is such that payment can not be made, is sufficient on demurrer. SAME. Verification.—Demurrer.-The fact that such answer is not sworn to is not presented by a demurrer thereto. From the Perry Circuit Court. C. A. De Bruler and E. R. Hatfield, for appellant. PERKINS, J.-Suit on an account for work and labor, etc. Demurrer to the complaint, for want of sufficient facts, overruled, and exception entered. The defendant below, the appellant here, answered as follows: "The said defendant, for answer to the plaintiff's complaint herein, says, that the plaintiff ought not to maintain this action, because the defendant is a corporation organized and existing under the laws of the State of Indiana, under articles of association; that the said plaintiff was one of the original incorporators, and duly signed and executed said articles of association, and that he has ever since been, and now is, a member and stockholder of said corporation, owning and holding forty shares of fifty dollars each, amounting to two thousand dollars, of the stock of said corporation; that, by the terms of the 7th section of said articles of association, a copy of which is filed herewith, as a part hereof, it is provided, that every member shall receive his wages in cash, if demanded, and the treasury will allow it; and the defendant expressly avers, that all of the indebtedness set forth in plaintiff's complaint is for wages for work and labor performed by |