7. Same-Demurrer.-The sufficiency of such a petition may be tested by
demurrer or motion.
Ib.
8. Same. Notice.-Such petition should state the names of the owners of
lands affected, so that the court may cau proper notice to be given. Ib.
9. Same.-Appearance.—An appearance by a remonstrant cures the want

of notice.

Ib.

10. Same. Viewers not Required.-User.-Viewers are not required in such
proceeding; as the fact necessary to be established is, in one class of
cases, user for more than twenty years, with the consent of the owners,
or, in the other class, that the highway has been laid out but not re-

corded.

Ib.

11. Same.-New Trial.-Error in refusing to strike out parts of the petition.
or in overruling a motion to dismiss the same, are not causes for a new
trial.
Ib.

HORSE-RACE.

PREMIUM.

HUSBAND AND WIFE.

See COVENANT, 4; ESTOPPEL; GUARDIAN AND WARD, 6; MORTGAGE, 1, 2,
9; REVIEW OF JUDGMENT; TRESPASS, 1; VENDOR'S LIEN,

1. Post-Nuptial Agreement.-Statute of Descents.-Sections 36 and 40 of
the statute of descents, 1 R. S. 1876, p. 414, must be construed together,
in so far as they relate to post-nuptial agreements for the benefit of
wives.
Randles v. Randles, 93

2. Same.-Agreement must be in Writing.-Assent of Wije.-A post-nup-
tial agreement, making a pecuniary provision for the wife in lieu of her
rights in the real estate of her husband, must, to be valid, be evidenced
by a deed or other written instrument bearing an endorsement, or at-
tached to a written acknowledgment, of her "assent to receive the
same, in lieu of all " her "right or claim, 帶 等 in the lands of the
husband."

Ib.

Same-Partition.-Quieting Title.-Cross Complaint.-In an action by
the heirs, to partition the lands of an intestate among themselves, and
to quiet their title thereto as against the widow, the complaint alleged
that she had entered into a post-nuptial agreement with the intestate,
and had accepted a pecuniary provision made thereby, in lieu of her
right in his lands.

Held, it not being averred that such agreement was in writing, that it will
be deemed to have been merely verbal, and therefore invalid.
Held, also, that an answer by her, in the nature of a cross petition or com-
plaint, avoiding the alleged agreement, and claiming her third interest
as widow, is sufficient.

Ib.
4. Same.-Evidence.-Where, in such action, there is no evidence of a
valid post-nuptial agreement, the finding on that point must be against
the party alleging it.
Ib.
5. Good's Purchased by Wife in another State.-Common Law. Statute
of Foreign State.-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 prop-
erty, 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 re-
Smith v. Peterson, 243

cover.

VOL. LXIII.-40

6. Mistake.-Reforming Mortgage executed by Husband and Wife.-Par-
ties. A mistake in the description of lands belonging to a decedent,
intended to be included in a mortgage executed in his lifetime by him
and his wife, may be corrected in an action for that purpose, against his
widow and heirs or devisees and administrator. Wilson v. Stewart, 295
IDEM SONANS.

See LIQUOR LAW, 5, 7.

IMPEACHMENT OF WITNESS.
See CRIMINAL LAW, 35, 36, 44, 45.
INCEST.

See CRIMINAL LAW, 44, 45.

INDEMNITY.

See MORTGAGE, 7.

INDEX.

See MORTGAGE, 18, 19.

INDIANS.

See TAXES.

INDICTMENT.

See CRIMINAL LAW, 2, 8, 9, 14, 15, 27, 38, 40, 50, 61, 74, 75; LIQUOR

LAW, 4, 6.
INFANCY.

See PROMISSORY NOTE, 18; STATUTE OF LIMITATIONS, 4.

INFORMATION.

See COMMON SCHOOLS.

INJUNCTION.

See CITIES AND TOWNS, 3; Judgment, 8.

INQUEST.

See CRIMINAL LAW, 34 to 36.

INQUEST OF LUNACY.

See INSANE PERSON.

INSANE PERSON.

1. Inquest of Lunacy.-Judgment.—Appeal to Supreme Court.—The de-
fendant in a statutory inquest of lunacy may personally appeal to the
Supreme Court from a judgment rendered upon a verdict declaring
Cuneo v. Bessoni, 524
him to be a person of unsound mind.

2. Testimony of Expert.-Witness.-The testimony of an expert, in rela-
tion to the sanity of a person, should be tested by the same general rules
as the testimony of other witnesses.

INSANITY.

See CRIMINAL LAW, 10; INSANE PERSON.

INSTRUCTION TO JURY.

See CORPORATION, 3; CRIMINAL LAW, 7, 18, 21, 22, 62 to 64, 76; NEW
TRIAL, 9; PRACTICE, 20, 22; PROMISSORY NOTE, 12; RAILROAD, 12;
SUPKEME Court, 6.

1. New Trial.-The mere fact that an instruction to a jury is “out of place

and not pertinent to the issues" is not ground for a new trial, nor for
reversing the judgment.
Wiles v. Trustees, etc., 206
2. Harmless Refusal.-Where the substance of an instruction refused is
embraced in one given, such refusal is harmless.

Pate v. First Nat'l Bank, etc., 254

INSURANCE.

Fire Insurance.-Policy-Stipulation as to Loss during Non-Occupancy of
Premises Insured.—Notice.-A policy of insurance against loss by fire,
issued upon a house occupied by a tenant, provided, that, if the house
"shall, at any time during the continuance of this insurance, become
unoccupied, then and thenceforth, so long as the same shall be
so unoccupied, these presents shall cease and be of no force or effect."
Held, in an action on such policy, to recover for a loss by fire occurring at a
time when the house was unoccupied, that the plaintiff can not recover.
Held, also, that notice of such non-occupancy is not required.
Held, also, that, by such non-occupancy, the policy became, not wholly void,
but simply inoperative until the house should be reoccupied.

INTEREST.

Etna Ins. Co. v. Meyers, 238

See CORPORATION, 4; PROMISSORY NOTE, 23.

Open Account.-Interest on an open account may, in a proper case, be allowed.
Young v. Dickey, 31

INTERPLEADER.

See ATTACHMENT, 5.

INTERROGATORY TO JURY.

See LIQUOR LAW, 1; PRACTICE, 17 to 21, 22; PROMISSORY NOTE, 5.

JUDGMENT.

See CHATTEL MORTGAGE, 2; CONTEMPT, 2; DECEDENTS' ESTATES; ESTOPPEL,
1; GUARDIAN AND WARD, 21; Highway, 2; INSANE PERSON, 1; PARTI-
TION, 2; PARTNERSHIP, 3; PRACTICE, 5, 17, 23; PROMISSORY NOTE, 5;
REPLEVIN, 2; REVIEW OF JUDGMENT; SUPREME COURT, 18; VENDOR'S
LIEN.

1. Entering and Signing of.—Statute Construed.—Duties of Judge and Clerk.
-Section 22 of the circuit courts act of June 1st, 1852, 2 R. S. 1876, p. 10,
in relation to the entering and signing of judgments, and the issuance
of process thereon, is directory merely.
Jones v. Carnahan, 229
2. Same. When Execution may be Issued.—Such section contemplates, that
single judgments or decrees may be immediately read and signed, sepa-
rately from the other proceedings of the same day, so that executions may
at once be issued thereon.

Ib.

3. Irregularity in Issuing Execution may be Taken Advantage of only by
Defendant.-Parties.-Irregularity in the issuance of an execution can
be objected to, not by the plaintiff in any other execution or judgment
against the same defendant, but only by the defendant himself; and even
then only in a direct, and not in a collateral, proceeding.
Extent of Relief Granted.—The extent of the relief to be granted by a
judgment is restricted to the relief prayed for in the complaint, only in
cases where there is no answer.
Humphrey v. Thorn, 296

4.

Ib.

5. Same.-Supreme Court.-Petition for Rehearing.—The fact that the judg
ment of the Supreme Court, in a case wherein an answer was filed, is
broader than the relief prayed for in the complaint, is not ground for a
rehearing.

6.

Ib.

Action Upon-A judgment is a debt of record, upon which an action
may be maintained, either in the court which rendered such judgment or
in any other court of competent jurisdiction, and the judgment plaintiff

may at once renew his action, ad infinitum, upon each successive judg-
ment thus recovered.
Gould v. Hayden, 443
7. Same.-Last Judgment Merges Preceding.-Where a judgment is thus
recovered upon a judgment, the latter is merged in the former, and all of
its liens or priorities are released.
Ib.
8. Same.-Lien.—Execution.—Injunction. Where a judgment is recovered
in a court of competent jurisdiction in another State, upon a judgment
previously rendered in this State, the latter is merged in the former, all
of its liens or priorities upon lands in this State are abandoned, and the
owner of such lands may enjoin a sale of the same upon an execution
issued thereon.
Ib.

JUDICIAL ACT.

See TAXES, 3.

JUDICIAL DISCRETION.

See CRIMINAL LAW, 17, 20, 29, 37, 40, 55, 65, 72; PRACTICE, 2, 24.

JURISDICTION.

See CITIES AND Towns, 2, 10; FEES AND SALARIES, 1; HIGHWAY, 2.

JURY.

See CRIMINAL LAW, 19, 50, 56, 62 to 64, 65; NEW TRIAL, 6; PRACTICE, 22.
JUSTICE OF THE PEACE.

See APPEAL BOND;

ATTACHMENT, 2; PLEADING 5; PROMISSORY NOTE,
13 to 16; RAILROAD, 1; REPLEVIN, 2; TRESPASS, 1.

LANDLORD AND TENANT.

See CHATTEL MORTGAGE, 1.

1. Forfeiture of Lease for Non-Payment of Rent.-Demand.-By the terms
of a written lease of a tract of real estate, the tenant was to pay to the
landlord annually, on a specified day, a stipulated sun of money as rent;
and if the annual rent was not promptly paid, as it became due, on or be-
fore the day specified, the lease was to be null and void.

Held, there being no place of payment stipulated, that, to work a forfeiture
of the lease for non-payment of rent, payment of the rent due should
have been demanded by the landlord of the tenant, on the premises, just
before sunset on the day specified.

Held, also, that a demand, made at any other time on such day, worked no
forfeiture of the lease.
Jenkins v. Jenkins, 415

2. Same. Notice to Quit for Non-Payment of Rent.-Service.-Statute
Construed.-The ten days' written notice to quit for non-payment of
rent, under section 4 of the act of May 20th, 1852, 2 R. S. 1876, p. 336,
"regarding landlords, tenants," etc., must under section 6 of such act,
be served by delivering the notice itself to the tenant, or, if he can not
be found, to some person of proper age and discretion, residing on the
premises, after having first made known to him the contents of the
notice.
io.
8. Same.-Service of such notice by reading the same to the tenant is in-
sufficient.
Ib.

LARCENY.

See CRIMINAL LAW, 5, 6, 12, 13, 38 to 41.

LEGAL DISABILITIES.

See PROMISSORY NOTE, 18; REVIEW OF JUDGMENT; STATUTE OF LIMITA-

TIONS, 3, 4.

LEGALIZING ACT.

See CITY TREASURER, 5, 6.

LIEN.

See CHATTEL MORTGAGE, 1; JUDGMENT, 8; MECHANIC'S LIEN; VENDOR'S

LIEN.

LIQUOR LAW.

1. Act of 1873, Section 12.-Action by Wife.-Exemplary Damages.—Inter-
rogatory to Jury.—Remittitur.-Supreme Court. On the trial of an
action by a married woman, instituted under the 12th section of the act
of February 27th, 1873, Acts 1873, p. 151, regulating the sale of intox-
icating liquors, to recover damages for the act of the defendant in unlaw-
fully causing the intoxication of her husband, the jury trying the cause,
with their general verdict assessing damages in favor of the plaintiff,
returned an interrogatory put to them, answering that a specified sum
of the damages assessed by their general verdict was allowed as exem-
plary damages.

Held, that the allowance of exemplary damages was unauthorized.
Held, also, that the exemplary damages should be remitted, in the Supreme
Court on appeal, or the judgment reversed. Schafer v. Smith, 226

2. Sale to Minor.-A sale of intoxicating liquor to a minor, made by the
seller in the reasonable and honest belief that such minor is of full age,
is not a violation of the liquor law.
Robinius v. The State, 235
3. Personal Appearance of Minor.—The court has no right to take into
account, in determining the guilt or innocence of such seller, the per-
sonal appearance of such minor as to age.

Ib.
4. 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. O'Brien v. The State, 242
5. Name.-Idem Sonans.-Proof of an unlawful sale of intoxicating liquor
to one "Hairholts" does not sustain the allegation of an unlawful sale to
one "Hairholser."
Mitchell v. The State, 276
6. Affidavit.-Sale to Person in the Habit of Becoming Intoxicated.-Quantity.
-An affidavit for an alleged unlawful sale of intoxicating liquor must,
to be sufficient, aver the sale of some particular quantity less than a
quart, even where the sale is alleged to have been made to a person in
the habit of becoming intoxicated.
The State v. Zeitler, 441
Criminal Law.-Idem Sonans -Proof of an unlawful sale of intoxicat-
ing liquor to one Hairholts" will not support an indictment charging an
unlawful sale to one "Hairholser."
Mitchell v. The State, 574

7.

8. Sale for Medicinal Purposes.-The question as to whether or not a sale of
intoxicating liquor was made for medicinal purposes, is one for the jury
trying the case.

MALICIOUS TRESPASS.

See CRIMINAL LAW, 51 to 53; FALSE IMPRISONMENT, 4.

MANDATE.

See APPEAL BOND; FEES AND SALARIES, 1; TAXES, 1.

MARION CRIMINAL CIRCUIT COURT.

See FEES AND SALARIES, 1.

MARRIED WOMAN.

Ib.

See ESTOPPEL, 1; HUSBAND AND WIFE; REVIEW OF JUDGMENT;
VENDOR'S LIEN.