4. Same.-Repayment of Premium.-Cancellation of Policy.-Answer.-Repay-
ment of unearned premium and a cancellation of the policy constitute
a good defence to a complaint on an assigned policy of insurance by
the assured.
Ib.
5. Life Insurance.-Provision Forfeiting Policy for Non-Payment of Premium.—
Where a policy expressly and fully provides that a failure to pay
premiums at the times therein stipulated shall cause a forfeiture, the
failure to pay as stipulated will, unless some excuse or waiver is
shown, work a forfeiture of the policy.
Willcuts v. Northwestern, etc., Ins. Co., 300
6. Same.-Right to Recover Proportionate Part of Insurance on Partial Pay-
ment of Premium.-Where the policy expressly provides that a failure
to pay premiums at the times stipulated shall cause a forfeiture, the
insured is not entitled because of payment of part of the premium to
recover a proportionate amount of the policy. In such a case the rule
that where one does work under a special contract, but does not per-
form the entire contract, he may recover upon the quantum valebat,
has no application, for such a contract of insurance is an indivisible
Ib.
7. Same.-Custom as to Payment of Premium.-Demurrer to Evidence.-A cus-
tom, that a payment of the premium may be made in a different man-
ner from that provided in the policy, can not, even upon a demurrer
to the evidence, be inferred from a single act. The fact that the in-
surance company in one instance allowed credit to the insured for a
claim for services, and accepted the balance of the premium in money,
does not warrant the inference of a custom to accept pay in services. Ib.
8. Same.-Policy. — Conditions.—Covenants.—Where there is a full and valid
express covenant or condition in a policy of insurance, there can be
no implied one, respecting the same subject.
1b.
9. Same.-Modification of Policy by New Parol Contract.-A policy may be
modified by a new and distinct parol contract.
Ib.
10. Same.-Member of Mutual Insurance Company.-The fact that the in-
sured becomes a member of a mutual life insurance company does not
prevent a lapse of his policy and a termination of liability upon it
by reason of his failure to perform the conditions required by the
terms of the policy to keep it in force. The stipulations of the con-
tract and its construction are none the less binding, because made be-
tween the corporation and a member.
Ib.
11. Same.-Waiver of Condition in Policy.- Power of General Agent.—A gen-
eral agent of a foreign insurance company, possessing competent au-
thority, may waive the condition in the policy that the premium
should be paid in money. A mere local agent could not.
12. Same.-Payment of Part Premium.-An insured member of a mutual
life insurance company is not entitled to a proportionate part of the
amount of his policy of insurance, when only a part of the premium
is paid, in contravention of the conditions of the policy, that if not
paid on a certain day it should cease.
Ib.
13. Same.-Tender of Premium.-Notice.-An insurance company, by de-
manding more than it is entitled to receive, and notifying the insured
that nothing but a compliance therewith will be deemed performance,
will excuse the insured from tendering the premium; but a notice re-
questing payment of a premium, calling attention to the conditions of
the policy, etc., can not be construed as intended to mean that the com-
pany repudiated an agreement to receive as part payment of the
premium a bill for services of the insured, and excuse him from the
payment of the balance of the premium, in accordance with the terms
of the policy.
14. Same.-Construction of Policy.-Where parties have, by their own acts
under the policy, placed a construction upon a policy of insurance,
the courts will carry that construction into effect.
INSURANCE AGENT.
See CRIMINAL LAW, 17, 18.
INSURANCE COMPANY.
See CRIMINAL LAW, 17, 18; INSURANCE.
See INSANITY, 4; LIQUOR LAW, 2; PRACTICE, 1, 4; SLANDER, 2; SUPREME
COURT, 18; VERDICT, 3 to 5.
1. Erroneous Conclusion.-An instruction which, having stated a part only
of the evidence given relative to the issue, concludes: "Your finding
should be for the plaintiff," is erroneous. Thompson v. Boden, 176
2. Practice.-Harmless Error.-If all the instructions, taken as a whole,
fully give the law of the case, it is not material that a single one may,
in itself, omit something which ought to be given.
Branstetter v. Dorrough, 527
See PROMISSORY NOTE, 12, 14; TAXES, 17.
INTOXICATING LIQUOR.
See LIQUOR LAW.
INTOXICATION OF PUBLIC OFFICER.
See CONSTITUTIONAL LAW, 3.
JEOPARDY.
See CRIMINAL LAW, 11.
JUDGMENT.
See APPEAL; APPEAL BOND; ATTACHMENT, 8; ATTORNEY; BASTARDY;
COSTS; DRAINAGE, 2, 3; FRAUD; FRAUDULENT CONVEYANCE, 2; MAR-
RIED WOMAN; PRACTICE, 5; REVIEW OF JUDGMENT; SHERIFF'S SALE,
12, 18; SUPERIOR COURTS; TAXES, 9; VENDOR AND PURCHASER, 5.
1. Practice.-Judgment Reopened.-Section 601, R. S. 1881.-Complaint.—
Demurrer.-A party notified by publication only, and who has had a
judgment against him opened under sec. 601, R. S. 1881, may demur
to the original complaint for such cause as would not be deemed
amendable on appeal, or cured by the verdict on motion in arrest.
Smith v. King, 217
2. Mistake.-Error of Law.-Complaint.-A complaint to correct a judg
ment for mistake, which does not show any mistake in the entry, but
merely an error of law, is insufficient, and no relief can be granted
thereon.
Bole v. Newberger, 274
3. Same.-Sheriff's Sale.-Foreclosure.—Bona Fide Purchaser.—Notice.—The
order of sale on foreclosure of a mortgage is the sheriff's authority to
sell, and if he sell to the plaintiff for the whole debt (the order being
to make only a part) more of the mortgaged property than is directed
by the order, the latter is not a bona fide purchaser without notice of
the irregularity, but of such sale the defendant may be relieved, and
on his prayer the court may confirm title in the plaintiff to so much
of the property as was directed to be sold, and adjudge the rest to the
defendant.
Ib.
4. Same.-Reformation of Judgment of Foreclosure.-Where, on complaint
to foreclose a mortgage to secure several instalments, the judgment
directed the sale of a part of the lands mortgaged to make the amount
of the instalments then due-being silent as to the instalments not
due-and the sheriff sells the whole of the lands to the plaintiff, the
latter can not by complaint, without showing that the judgment en-
tered was other than the court intended, obtain its reformation; and
it is doubtful whether he can, by an original suit, have any relief. Ib.
5. Validity of Judgments.-Collateral Attack. The judgment of a court of
general jurisdiction, having jurisdiction both of the subject-matter
and of the parties, is valid, binding and conclusive, as to the matter
in controversy, upon the parties, and those claiming under them; and,
even though erroneous, such judgment can not be impeached or at-
tacked in any collateral suit or proceeding. Sauer v. Twining, 366
6. Assignment of Error.-Supreme Court.-When the judgment appealed
from is defective and incomplete, but no error is assigned thereon,
and no available error has been committed in the proceedings which
led to it, it will not be reversed.
Gavin v. Board, etc., 480
7. Practice.-Supreme Court.-Objection to the form of a judgment can
not be made, for the first time, in the Supreme Court. Evans v. Feeny, 532
JUDICIAL NOTICE.
See CRIMINAL LAW, 3.
JUDICIAL SALE.
See MARRIED WOMAN; SHERIFF'S SALE.
See CIRCUIT COURTS, 2; ELECTIONS; JUSTICE OF THE PEACE, 3 to 4; RE-
COGNIZANCE, 2, 3.
JURY.
See EXECUTION, 3; INSTRUCTIONS; LIQUOR LAW, 2; PRACTICE. 1; VER-
Communication of Court With.-Coercion of Agreement by Threat.-Practice.-It
is error for the court, without the consent of a party, to send word to
the jury, by the bailiff in charge, that if they do not agree to a ver-
dict, he will keep them together until Saturday-that is to say, for
four days. Such threat is an improper effort to coerce into an agree-
Terre Haute, etc., R. R. Co. v. Jackson, 19
1. Bail Bond.-A justice of the peace can not fix the bail in cases of fel-
ony at the time of issuing the warrant.
State v. Winninger, 51
2. Jurisdiction.--Amount in Controversy.-The jurisdiction of a justice of
the peace, in civil suits founded on contract or tort, under section
1433, R. S. 1881, is limited to the amount of two hundred dollars.
Nat'l Bank, etc., v. Hutton, 101
3. Same.-Complaint.—Bill of Particulars.—Practice.-Where a bill of par-
ticulars, filed with the complaint, shows that the plaintiff's claim or
cause of action does not exceed the sum of two hundred dollars, the
justice will have jurisdiction of the case, even though the prayer of
the complaint is for a sum in excess of two hundred dollars; for, in
such case, the amount in controversy can not exceed the amount of
the demand as stated in the bill of particulars.
Ib.
4. Same.-Appeal from Justice.-Jurisdiction of Circuit Court.--If the justice
of the peace have jurisdiction of a cause, on appeal from such justice,
the circuit court will also have jurisdiction of such cause.
Ib.
5. Breaches of Bond.-Evidence.-Conversion.-In an action upon the bond
of a justice of the peace, the complaint alleging as breaches his conver-
sion of money collected on judgments and his failure to bring suit upon
claims, evidence of his collection of money for the plaintiffs without
process is not admissible.
Hackler v. State, ex rel., 430
See CRIMINAL LAW, 15, EMBLEMENTS; REAL ESTATE, ACTION TO RE-
COVER, 1 to 5; SHERIFF'S SALE, 18, 19.
Tenancy.-Where the term of a tenancy is uncertain, the tenant who sows
a crop is entitled to reap it.
Heavilon v. Farmers Bank, 249
See LANDLORD AND TENANT; REAL ESTATE, ACTION TO RECOVER, 2 to 5.
LEX SITUS.
See MORTGAGE, 1.
LIEN.
See CHATTEL MORTGAGE, 2; GUARDIAN AND WARD, 7; Mortgage, 5, 6;
PARTNERSHIP; SHERIFF'S SALE, 15; TAXES; VENDOR AND PUR-
CHASER, 4, 5.
LIFE INSURANCE.
See INSURANCE.
LIQUOR LAW.
1. Intoxicating Liquor.-Beer.-Selling on Sunday.-Evidence.-On trial of
an indictment for selling liquor on Sunday, evidence, to wit: "Am
sure it was on Sunday. Mr. K. got a glass of beer for himself and
one for me. Defendant handed us the liquor; K. paid for it five cents
a glass; beer is an intoxicating liquor," shows that the beer so sold
was an intoxicating liquor, and is sufficient to sustain a conviction.
Pancake v. State, 93
2. Same.-Instruction.-Assuming Fact.-Jury.-On such trial it was error
to instruct the jury: "It would be a legitimate inference for you to
draw that the witness, in saying beer was intoxicating, had reference
to the beer spoken of by him when he said he had purchased beer of
the defendant." The inference from the facts is a question for the
jury, and not a matter of law for the court.
Ib.
3. Same.-If the evidence show that the intoxicating liquor was sold on
some Sunday within two years prior to the return of the indictment,
it need not fix the precise Sunday within that time.
LIS PENDENS RECORD.
See VENDOR AND PURCHASER, 1, 2.
Statute Construed.-The act of 1877 concerning lis pendens, Acts 1877, Special
Session, p. 54, had no retroactive effect, and therefore did not apply to
cases pending when it took effect, nor did it apply to cases in the
courts of the United States.
Wilson v. Heflin, 35
LOTTERIES.
See CRIMINAL LAW, 3 to 7.
MALICE.
See SLANDER, 2.
MANDAMUS.
See DRAINAGE, 3.
MARRIED WOMAN.
See HUSBAND AND WIFE; VOLUNTARY ASSIGNMENT.
1. Inchoate Interest in Husband's Land Sold on Foreclosure.-Mortgage.—
Vested Right.-Act of 1875 Construed.-When a man's land has been
sold upon foreclosure of a mortgage made by him alone before the
passage of the act of 1875, Acts 1875, p. 178, the inchoate interest of
the wife is not affected by that law. The vested right of the mortgagee
could not be impaired by an enlargement of the inchoate right of the
wife.
McGlothlin v. Pollard, 228
2. Same.-Redemption.- Wife's Transfer of Right.-Conveyance.-Party.—If a
wife is not made a party to a foreclosure suit against the husband, her
right to redeem from a sale under the decree continues unaffected,
and this right she may transfer to another, by joining her husband
in the execution of a deed.
Ib.
3. Conveyance.-Inchoate Interest in Land of Husband.-Statute Construed.-
Judicial Sale.-A wife's inchoate interest in real estate is not a present
interest which can be transferred, but only a contingent right, which
will be barred or extinguished by her joining in a deed of conveyance
with the husband; and when she has joined in such conveyance, the
act of March 11th, 1875, section 2508, R. S. 1881, can not apply to
a subsequent judicial sale, though under a judgment rendered against
the husband before the conveyance was made. Hudson v. Evans, 596
4. Same.-Sheriff's Sale.—Judgment.—A. and wife conveyed land of A. to
P., who conveyed the same to E. By virtue of an execution upon a
judgment against A., the land was afterwards duly sold and conveyed
by the sheriff to H.
Held, in an action by H. to recover possession of the land, that the act of
1875, concerning the wife's inchoate right, did not apply, and that
the wife of E. had no interest in the land under said act.
MASTER AND SERVANT.
See CORPORATIONS, 5; NEGLIGENCE, 1; RAILROAD, 1 to 4.
MEASURE OF DAMAGES.
See CHATTEL MORTGAGE, 4; FRAUD; GUARDIAN AND WARD, 8; INJUNC-
TION BOND.
See FEES AND SALARIES.
MISNOMER.
See ATTACHMENT, 3, 7; TAXES, 14.
See CITY; JUDGMENT, 2 to 4; MORTGAGE, 2, 6, 7; PROMISSORY NOTE, 11;
SHERIFF'S SALE, 17; SPECIFIC PERFORMANCE, 2; TOWNSHIP TRUS-
TEE, 1, 2.
Voluntary Payment.-Money paid through a mistake of facts, with the
means of knowing the facts within reach of the party, can not be re-
covered back.
Butt v. Jennings School Tp, 69
See CHATTEL MORTGAGE; JUDGMENT, 3, 4; MARRIED WOMAN, 1, 2;
PROMISSORY NOTE, 17, 18 to 20; SHERIFF'S SALE, 15 to 19; SUPREME
COURT, 24; VENDOR AND PURCHASER, 3; VOLUNTARY ASSIGNMENT.
1. Situs of Land.--State.--Presumption.—A deed or mortgage, made in the
form prescribed by the law of the State, which purports to have been
executed and acknowledged in and between parties resident in the
State, and contains nothing to indicate a contrary intention, will be
presumed to be of land in the State.
Dutch v. Boyd, 146
2. Same.-Correction of Mistake.-Statute of Frauds.-The correction of a
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