6. Infunt cannot abandon.

Minors are incapable, by act or declaration, of waiving or abandoning the homestead right. Booth v. Goodwin et al.,

7. Nature of the occupancy required of infants.

633

It is the duty of the guardian to take possession of the homestead and rent it for the benefit and support of the ward, and this is the occupancy contemplated by the statute. (Act of 1852.)

8. Effect of the act upon the rights of creditors.

Ibid.

The effect of the homestead act of 1852 was to suspend the rights of creditors until the child or children should become of age, at which time the creditors would be entitled to satisfaction out of the homestead. Ibid.

9. Ejectment will lie for the recovery of.

During the existence of the homestead right, the children have such an estate and right of possession as will enable them to maintain ejectment for the recovery of the land.

Ibid.

HUSBAND AND WIFE.

See CONTRACT, 2. DEEDS, 1, 2. EVIDENCE, 20, 22. PLEADING, 9. TRUST.

1. Gift from husband to wife when the former is indebted.

A gift from a husband to his wife is not void as to his creditors, if he retains ample means to pay his debts. Chambers v. Sallie, Adm'r, et al.,

407

2. Separate estate of married women, how created, etc. Prior to an act of April 28, 1873, a married woman could, in equity, take real and personal property to her separate and exclusive use; but in order to exclude the marital rights of the husband, the intention to settle it to her sole use must have been clearly expressed by apt words to that effect. Buckner & Co. v. Davis and wife,

444

3. Right of married women to charge her separate estate. The right of a married woman to charge her separate estate with the payment of her debts, especially those created for her own benefit, or in respect to the estate, is well settled.

4. Take land by entireties.

Ibid.

At common law, husband and wife are seized of the entirety in land conveyed to them jointly; and upon the death of one of them, the estate remains to the survivor. Robinson v. Eagle and wife, 202

5. Construction of statutes and constitution of 1868.

The rule of the common law is not changed by our statute or the constitution of 1868. The latter, art. XII, scc. 6, only relates to the separate property of the wife, and was intended merely to preserve it from liability for the debts of the husband.

Ibid.

6. How far contracts of a married woman bind her separate estate. It is the established rule in England that the contracts of a married woman will be presumed to have been made in reference to her separate property, and therefore binding upon it, unless something to the contrary appears. Stillwell and wife v. Adams et al., Ex'r, 346

7. Same.

In a majority of the United States a more limited rule is applied, and the contracts of married women are not enforced against their separate estate, unless they were made in reference thereto, or for their personal benefit.

8. Same.

Ibid.

This court have adopted the rule which restricts the wife's power to contract, unless in direct reference to her separate property. Ibid.

9. Same.

This was a proceeding in chancery against husband and wife, to fore. close a mortgage executed by them jointly; there was no averment that the debt was intended to charge her separate property, or that she had a separate estate, or had any interest in the land conveyed other than such as was hers by virtue of the marital relation. Held, that a general demurrer was well taken to the complaint.

Ibid.

10. Conveyance, or relinquishment of dower by married women. Under our statute, an acknowledgment, upon privy examination, is requisite to the validity of the wife's conveyance or relinquishment of dower, and the husband must join in the deed. Stedham and wife v. Mathews et al.,

11. Cannot contract to convey land.

650

A married woman cannot, under the statute, execute a title bond or executory contract to convey land.

Ibid.

INDEMNITY.

See PRINCIPAL AND SURETY, 2.

INDICTMENT.

See CONSTITUTIONAL LAW, 1.

CRIMINAL PRACTICE, 1, 6.

VERDICT, 3.

1, JOINT: Proof under, where the accused sever at the trial. Where two persons are jointly indicted for murder, and sever at the trial, it is sufficient to prove the guilt of the one on trial, though the jury may have a doubt as to that of the other. Hurley v. The State,

2. For obstructing highway.

17

An indictment for obstructing a public highway must show such an obstruction as affects and annoys the entire community, otherwise it will be demurrable. State v. Holman,

3. Certainty requisite in.

58

An indictment for larceny, describing the subject of the larceny as one hundred and thirty dollars, etc., without any specification as to the kind of money, is insufficient on demurrer, or motion in arrest of judgment. Barton v. The State, 68

4. The provisions of the code, sec. 1975, Gantt's Dig., require that every material fact necessary to constitute an offense, be alleged in the indictment.

5. Form of under the Code.

Ibid.

A statement, in the indictment, of the facts necessary to constitute the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended, is all that is required. Dixon v. The State, 165

6. Indictment for arson, etc.

No allegation of ownership is necessary in an indictment for arson of a public building; but there must be an allegation of a felonious intent. Mott v. The State,

147

7. The provisions of the constitution of 1868, that no person could be held to answer a criminal offense, unless upon presentment or indictment, except the offenses named therein, must be construed with reference to the common law meaning of the term indictment; and, while the legislature may dispense with mere matters of form, the substance of a good common law indictment must be preserved.

Ibid.

INFANCY.

See HOMESTEAD, 5, 6, 7.

INJUNCTION.

See CHANCERY JURISDICTION, 2.

Denied when there is a legal remedy.

Where it appeared that there was an adequate remedy at law, and no facts were alleged to bring the case within any of the established heads of equity jurisdiction, a demurrer was properly sustained to a bill for an injunction. Murphy et al v. Harbison,

INQUEST.

See EVIDENCE, 6.

340

INSANITY.

See PLEADING, 4.

INSTRUCTIONS.

See BILL OF EXCEPTIONS. CRIMINAL LAW, 2, 8–13. WILL, 2.

1. Abstract, argumentative, etc., when sustained.

An instruction by the court, though it may be unnecessarily long and redundant, and a portion of it argumentative for the purpose of comparing the relative value of direct and circumstantial testimony, and to some extent abstract, such parts being sufficiently qualified by other instructions, will be sustained, if, upon the whole, the charge seems to have been fair, impartial, and composed of principles of law expressed in substantially correct terms. Hurley v. The State,

2. Abstract may be refused.

18

The refusal of the court to give an instruction that is not applicable to the indictment is no ground for new trial.

3. Respecting the evidence.

Ibid.

It is in the discretion of the court to give, or withhold cautionary instructions in regard to the evidence. Dawson v. The State, 116

4. The instructions should be based on evidence in the cause, otherwise, they are correctly refused. Tobin et al v. Jenkins et al.,

5. Under the issue of devisavit vel non.

151

The court should not, under the issue of devisavit vel non, embody a hypothetical state of facts in an instruction and direct the jury what their verdict must be in case they find those facts.

Ibid.

6. While it is true that an unequal distribution of the estate of the testator among his children is a circumstance calculated to arouse suspicion, and should go to the jury, an instruction that it required strict proof of fairness would tend to induce the jury to attach undue im portance to it, and should not be given. Ibid.

7. If an instruction, on a trial for murder, contained a fair exposition of the law, it will not be held objectionable because the court used the term “murder" in referring to the killing. McPherson v. The State,

225

8. Degrees of homicide should be defined. The court should define to the jury the difference in the degrees of homicide; but the failure to do so will not be ground for reversal where the court read from the statute the definition of the different degrees of murder. Palmore v. The State,

9. Same.

248

An instruction, that where a deliberate purpose to kill, or do great bodily harm, on the part of the defendant, appeared, followed by an unlawful killing, the provocation which immediately preceded must not be considered, unless the defendant showed that the purpose was abondoned before the killing; should be accompanied by an explanation of the degrees of homicide, and so guarded as to allow the jury to infer the abandonment of the purpose to kill, from the circumstances of the homicide. Ibid.

10. When obscure.

Where an instruction is vague and obscure, but not misleading, this court will not hold it erroneous.

Ibid

11. How tested.

In testing an instruction, every deduction that the jury might have made from the evidence is to be taken as having been proven. Ibid.

12. When it need not be in writing.

The reading of a section of the digest to the jury, as an instruction, is a sufficient compliance with the law requiring it to be in writing.

Ibid.