land to pay debts, an answer of former adjudication, decreeing the land
to be the property of the defendants, had in a similar proceeding by a
former administrator of the same estate, is sufficient, although, had an
appeal been taken in such prior proceeding to the Supreme Court, such
decree would have been reversed.
Parker v. Wright, 398

FORMER CONVICTION.

See CRIMINAL LAW, 4.
FRAUD.

See DURESS; INSURANCE, 1, 2; JUDGMENT, 9, PARTNERSHIP; PRINCIPAL
AND AGENT, 5.

FRAUDULENT CONVEYANCE.

See ATTACHMENT; REAL ESTATE, ACTION TO QUIET TITLE, 1 to 5.
Action to Set Aside.-Pleading.-Evidence. In an action by a judgment
creditor, against his judgment debtor and another, to set aside an
alleged fraudulent conveyance of real estate by the debtor to his code-
fendant, it must be charged in the complaint, and proved on the trial,
that, at the time the conveyance complained of was made, the debtor
did not have left enough of other property, subject to execution, to
pay his debts.
Whitesel v. Hiney, 168

GAMING.

See CRIMINAL LAW, 1, 23, 24.

GUARDIAN AND WARD.

See HABEAS CORPUS, 2, 3.

1. Parol Evidence Contradicting Receipt of Ward.-A receipt executed to a
guardian, by his ward, on attaining his majority, acknowledging the
amount therein mentioned to be "in full of all demands on account of
such trust, is not conclusive upon the ward, but may be explained, con-
trolled, qualified or even contradicted by parol evidence, in an action
on such guardian's bond.
Beedle v. The State, ex rel., etc., 26
2. Same.-Final Report of Guardian.-A so-called final report by such
guardian, which has not been allowed or approved by the proper court,
is not competent evidence on behalf of the defendant in such action. Ib.
3. Duty of Guardian as to Ward's Money.-Investments.-It is the duty of
a guardian to loan or otherwise invest the money of his ward, so as to
keep it always at interest, as far as practicable, and to use due care in
making such loans or investments.

The State, ex rel., etc., v. Sanders, 562
4. Conversion of Trust Funds.-A guardian is answerable for any misman-
agement or unauthorized dealings with the trust moneys in his hands;
and any misapplication of such moneys is a conversion of them, within
the meaning of the statute reiating to guardians, 2 R. S. 1876, p. 592.

sec. 13.

Ib.

5. Identity of Trust Fund must be Preserved.-It is the duty of a guardian
to preserve the identity, as well as the existence, of the fund under his
control. If he destroys the fund he renders himself responsible for it
at once; and if he pays away the money as his own, the trust is practi-
cally at an end.

Ib.

6. Investment of Trust Funds by Guardian in His Own Business.-Surety.-
New Bond.-The investment of the ward's money by the guardian in
his own business, or in the business of others in which he has an inter-
est, as a mere business investment, is a conversion of such money, for
which he becomes immediately liable on his bond; and the solvency of
such guardian at a subsequent time, when he signs a new bond with a

new surety, is both an irrelevant and immaterial question, so far as con-
cerns the liability of the surety in the original bond, for the money so

invested.

HABEAS CORPUS.

Ib.

1. Order of Commitment, when Void.-Contempt.-Sheriff.-The defendant
in a habeas corpus proceeding, a sheriff, made return to the writ, that he
held the petitioner in custody by virtue of a certain order made by the
superior court of his county, and issued to the sheriff, in a certain ac-
tion, setting out a copy thereof, which recited that said petitioner had
failed and refused to comply with an order theretofore entered by the
court in such action, requiring him to deliver to the sheriff of said
county "all the goods covered by the mortgage of the plaintiff, re-
ceived by him from " H., "or, account to the plaintiff for the value
thereof, and adjudged that said petitioner be taken by the said sheriff
and held in custody until he shall obey the said order;
that is to
say, until he shall deliver said property to said sheriff, or account for
the value thereof."

66

'Held, that the order upon which the commitment was based is so uncertain
as to be a nullity, and that the order of commitment is void.
Held, also, that, had a contempt been the basis of the order of commit-
ment, such order should have shown a conviction of the contempt..
Privett v. Pressley, 491

2. Guardian and Ward.-Bastardy.-Custody of Ward.-The guardian of
an illegitimate orphan child is entitled to the custody thereof, and may,
by a writ of habeas corpus, procure the custody of the child, even as
against one to whom the mother, in her lifetime, entrusted the child to
remain until its majority.
Johns v. Emmert, 533

3. Same-Defence.-The facts, that the guardian is illiterate, that the de-
fendant is educating the child free of expense, that a petition for the
removal of the guardian is pending, and that the child desires to re-
main with the defendant, constitute no defence to such proceeding. Ib.

See ADVANCEMENT;

HEARSAY.

See EVIDENCE, 1; SLANDER, 4.

HEIRS.

DURESS, 1; REAL ESTATE, ACTION TO QUIET
TITLE, 1; SHERIFF'S SALE, 2; SWAMP LANDS, 2; WILL, 2.

See DURESS;

HIGHWAY.

See CRIMINAL LAW, 22.

HOLIDAY.

See LIQUOR LAW.

HUSBAND AND WIFE.

EXEMPTION FROM EXECUTION; MORTGAGE, 1; SWAMP
LANDS, 3; WILL, 3, 21; WITNESS.

1. Profits of Separate Property of Married Woman.-Replevin.—In an ac-
tion by a married woman, to recover the possession of certain corn, al-
leged to be hers, which had been levied upon by the defendant, a con-
stable, to satisfy an execution in his hands against the plaintiff's husband,
evidence was offered by the defendant to show that the plaintiff was a
married woman and the owner in fee of the land occupied as a farm by
the plaintiff and her husband, and used and cultivated by him with her
consent, and the products sold by him as his own, and the proceeds used
in the support of the family, and that, with her consent, he had rented a
field on such farm to be planted in corn, furnishing the plows, teams

and seed-corn to the tenant, who was to have one-third of the crop, and
that the corn produced on said field was the corn in question.
Held, that, under section 5 of "An act touching the marriage relation," etc.,
1 R. S. 1876, p, 550, the evidence is inadmissible.

Montgomery v. Hickman, 598
2. Same.-Evidence in such case, offered by the defendant, that, after the
corn in controversy had been taken from him by the writ of replevin
and turned over, the husband of the plaintiff took charge of such corn,
sold the same as his own, and received and appropriated to his own use
the money for the same, is inadmissible.

IMPEACHING WITNESS.

See EVIDENCE, 2, 4; PRACTICE, 9; WILL, 16.

INDEMNITY.

See MORTGAGE, 7; SPECIFIC PERFORMANCE.

INDICTMENT.

See CRIMINAL LAW, 1, 2, 3, 10, 12, 16, 17, 24, 25; LIQUOR LAW.
INFANCY.

Ib.

See MECHANICS' LIENS, 3, 4, 5; REAL ESTATE, ACTION TO QUIET TITLE, 3.
INJUNCTION.

1. Action on Injunction Bond.- Defence.-Res Adjudicata.-Matter which
goes only to the merits of an action to procure an injunction can not be
considered in an action on the bond given in such injunction proceed-
ing.
Sipe v. Holliday, 4
2. Same. Power of County Commissioners.--Improvement of Streets of Town.
-Judicial Notice. In an action on an injunction bond, to recover dam-
ages resulting from the delay occasioned by the injunction, the com-
plaint alleged that the defendant had enjoined the plaintiff from pro-
ceeding with the completion of a contract between the plaintiff and the
board of commissioners of a certain county, for the improvement of
the streets surrounding the public square of the county-seat, which ac-
tion had been defeated.

Held, on demurrer, that the power of such county commissioners to make
such contract entered into the merits of that action, and can not be con-
sidered in this.

Held, also, it not being averred that such county-seat was an incorporated
town, that the court can not judicially know that it had been incorporated,
and therefore no question arises as to the power of town trustees to make
such improvements.

Ib.
3. Same.--Defence.-An answer in such action setting up matter which
would have been merely a defence to the action for an injunction is in-
sufficient.

Ib.

4. Same. Title to Real Estate. - Jurisdiction of Common Pleas Court.-An
answer in such action, alleging that the defendant had applied for such
injunction in the court of common pleas on the ground that the im-
provements being made by the plaintiff would work irreparable dam-
age to adjoining real estate alleged to belong to the defendant, is insuffi-
cient, as the title to such real estate was not so involved as to oust such
court of jurisdiction.
Ib.

5. Same.-Jurisdiction to grant an injunction was expressly conferred on
courts of common pleas by section 21, 2 G. & H., p. 25.

INQUEST OF LUNACY.

See SLANDER.

Ib.

INSANE PERSON.

See SLANDER.

INSANITY.

See WILL, 3, 8, 14, 15.

INSOLVENCY.

See PRINCIPAL AND AGENT, 7.

INSTRUCTION TO JURY.

See BILI. OF EXCEPTIONS, 2; CONTRACT, 8, 9; CRIMINAL LAW, 6 to 9, 18, 19 ;
DECEDENTS' ESTATES, 2; DITCHES AND DRAINS, 5; INTEREST; LAW OF
THE CASE; PAYMENT; PRACTICE, 14; PRINCIPAL AND AGENT, 4;
PROMISSORY NOTE, 9, 14; REAL ESTATE, ACTION TO QUIET TITLE, 6;
SLANDER, 6; SPECIFIC PERFORMANCE; SUPREME COURT, 2, 7, 19, 20.
1. Repetition. The fact that the court, in its instructions to the jury. fre-
quently repeats a correct rule of law, is not error. Coffman v. Reeves, 334
2. How Construed.-Where a series of instructions, construed together, lay
down proper rules of law, and do not mislead the jury, the fact that one
of them, standing alone, might be objectionable, is not available as error.
Brooks v. Allen, 401

1

INSURANCE.

Fire Insurance.-Overvaluation.-- Fraud.- Mistake.- A mistaken, but
honest, overvaluation of property insured against loss by fire, made by
the owner in his application for insurance, is not a fraudulent overvalu-
ation which will defeat a recovery by him.

Citizens F. & M. Ins. Co. v. Short, 316
2. Same.-Verdict.-Where the defence of a fraudulent overvaluation is
tendered by the defendant, a verdict by the jury, for the plaintiff, for
less than the face of the policy, is, in effect, a finding that there was a
mistaken, but honest, overvaluation.

3. Foreign Companies.-Certificate of Auditor of State.- When Renewal to
be Filed.-Under the act of December 21st, 1865, 1 R. S. 1876, p. 594, in
relation to foreign insurance companies, such a company may, after
having filed, in the office of the clerk of the circuit court of a county
wherein it is transacting business, the certificate of the auditor of state
and the certified copy of the statement on which it is issued, as required
by section 1 of such act, file renewals of such certificate and copy at any
time during the months of January and July respectively, in each
succeeding year, and may validly transact its insurance business during
the whole of such months, though such renewals be not filed until the
last day thereof.
American Ins. Co. v. Pettijohn, 382

INTEREST.

See BUILDING ASSOCIATIONS, 3, 4; PROMISSORY NOTE. 11.

Action on Account.—Delay.- Instruction.- Where, in an action on account,
neither interest nor general relief is demanded, and there is no evidence
showing unreasonable delay in payment, it is error to instruct the jury
that interest may be allowed.
Marsteller v. Crapp, 359

INTERROGATORIES TO JURY.

See PRACTICE, 12, 16, 17, 18.

JUDGMENT.

See ATTACHMENT; BASTARDY, 4; CORPORATION; COSTS; CRIMINAL LAW,
4, 11; EVIDENCE. 5; HABEAS CORPUS, 1; JURISDICTION: MORTGAGE, 4,
8; PRACTICE, 5, 6, 10, 12, 16, 17, 18; PRINCIPAL AND SURETY, 1 to 4;

1.

REAL ESTATE, ACTION TO QUIET TITLE, 6; SUPREME COURT, 5; VEN-
DOR'S LIEN, 1.

Action to Declare Judgment Void.-Married Woman.-An action can not
be maintained by a married woman to have a personal judgment ren-
dered against her upon a simple contract declared void, though her cov-
erture and the nature of the indebtedness appear upon the face of the
complaint in such case.
Hinsey v.
Feele, 85
2. Review of Judgment.-Justice of the Peace.-The proper remedy in such
case is by an action to review such judgment.

Ib.

3. Query.-Can a review be had of a judgment rendered by a justice of the
peace?

Ib.

4. Action to Set Aside.-Default.-Inadvertence.-In an action by a judgment
defendant, to set aside a judgment rendered against him by default,
through his inadvertence, the complaint must show that the defendant
has a meritorious defence to the action, and must allege the facts consti-
tuting the alleged inadvertence.
Bristor v. Galvin, 352

5. Same.-Counter Affidarits.-Evidence.-Practice.-Such application can
not be contradicted as to the defence alleged, by counter affidavits or
other evidence.
Ib.
6. Same.-Promissory Note.-Partnership.-The fact that the applicant had
never been a member of a firm against whom judgment had been ren-
dered on a promissory note executed by the firm, is a good defence as to
him.

Ib
7. Same.-Sickness of Counsel.-Where such defendant has, with due dili-
gence, employed counsel to conduct his defence, the failure of the coun-
sel, by reason of sickness, to attend to his client's cause, may constitute
inadvertence for which such judgment should be set aside.

Ib
8. Same.-Process.-Service.-Jurisdiction. Where, on appeal from a judg
ment rendered against a defendant by default, the record fails to show
any service of process upon him, the judgment should be set aside. Ib.
9. Action on Judgment.-Duress.-Fraud.-Receipt.-Satisfaction of Judg
ment.-Parol Evidence.-Pleading.-A complaint alleged, in substance,
the recovery of a judgment against the defendant by the plaintiff for a
certain amount, a copy of which judgment was made part of the com-
plaint; that, subsequently, the plaintiff sold and delivered to the de-
fendant certain chattels at an agreed price; that the plaintiff was pos
sessed of limited means, and was greatly in need of the sum agreed
upon as the price of said chattels, whereupon the defendant, knowing
plaintiff's necessities, and taking advantage of them, refused to pay for
said chattels, and threatened to litigate payment, unless, as a condition
precedent, the plaintiff would enter satisfaction of his said judgment
and agree to pay the costs of suit; that, by reason of said fraud and
coercion, and for no other consideration, satisfaction of said judgment
was entered by plaintiff's attorneys, as follows: "By order of the
plaintiff herein, we hereby enter satisfaction of this judgment, the plain-
tiff to pay costs; and that said judgment remained due and unpaid.
Held, that the complaint states a cause of action, which entitles the plaintiff
to relief, even if the facts are not sufficient to constitute duress.
Held, also, that the entry of satisfaction, endorsed on the judgment, was in
the nature of a receipt for the amount thereof, and might be explained,
controlled, qualified, or even contradicted by parol evidence.
Held, also, that the facts alleged, if sustained by the evidence, vitiated and
avoided the said entry of satisfaction.
Stewart v. Armel, 593

JUDICIAL NOTICE.

See INJUNCTION, 2.