insolvent and unable to respond in damages. Porter v. Arm-
strong, 66.
The complaint for an injunction must set out such specific facts
as will enable the court to see that the apprehended dam-
ages will be irreparable. Porter v. Armstrong, 66.
INJURY TO PROPERTY.
In an action for damages for trespass on realty, the refusal of
the trial court to instruct that there was no evidence of
any damage prior to the commencement of the action, is
harmless error, the jury having found only nominal dam-
ages. Dale v. Railroad, 705.
A lessee may sue for injuries to his leasehold without making
the lessor a party. Dale v. Railroad, 705.
INQUISITION OF LUNACY. See "Insanity."
INSANITY.
Where, in an inquisition of lunacy, the jury finds the defendant
to be of unsound mind and incompetent for want of under-
standing to manage his own affairs, but not an idiot or
lunatic, the court should appoint a guardian. In re Ander-
son, 243.
In an indictment for murder, there being no allegation that the
prisoner was insane at the time of the trial, no issue as to
insanity need be submitted. State v. Spivey, 989.
The charge on insanity-that defendant should show to the sat-
isfaction of the jury that at the time of committing the deed
he was insane, and did not know right from wrong, or did
not know he was doing wrong; that it would not be suffi-
cient for the jury to be satisfied that he was a man of weak
mind, but they should be satisfied that he was insane, and
did not know right from wrong, before they should acquit
him on the plea of insanity; and that if they should be sat-
isfied, from the evidence, that he was insane, as the court
had explained insanity, they should acquit-will be held
sufficient to make the jury understand their duty, such
charge being prefaced with the statement that defendant
admits the killing, but says that at the time he killed de-
ceased he was insane, and that his mind was so diseased
that he did not know what he was about, or was not con-
scious of doing wrong at the time of committing the deed,
or could not distinguish between good and evil and did not
know what he did. State v. Spivey, 989.
INSOLVENCY. See "Injunction."
A judgment against an insolvent corporation for money had and
received merely establishes the debt and does not give the
judgment creditor preference over other creditors. Lacy v.
Asso., 131.
In an action to set aside a fraudulent conveyance, a judgment
and a return of execution thereon unsatisfied is strong, but
not conclusive evidence of insolvency. Mauney v. Hamil
ton, 295
INSTRUCTIONS.
See "Issues;" "Trial."
In an action by an employee of a railroad company for injuries,
an instruction appearing in the original record as embody-
ing two separate and distinct propositions of law, is held
on a re-hearing of the case to constitute in fact but one in-
struction and not misleading. Fleming v. Railroad, 714.
That certain parts of an instruction given on the issue of negli-
gence pertains more properly to the issue of contributory
negligence is not prejudicial to the defendant, if it operates,
as in this case, more strongly against the plaintiff if given
on the first issue than on the second. Gordon v. Railroad
Co., 565.
Where evidence introduced is competent only as impeaching
evidence and is not material as substantive evidence, the
trial judge should so instruct. State v. Austin, 1037.
It is error to permit evidence competent for one purpose only
to be considered generally by the jury without instructions
restricting it to the special purpose for which it is admis-
sible. Harrison v. Garrett, 172.
The trial court is not required to charge in ipsissimis verbis of
the request for instructions. Harris v..Railroad Co., 160.
It is not error for the trial court to refuse to charge that cer-
tain facts in evidence are true. Harris v. Railroad Co., 160.
The trial court is not required to dissect an erroneous prayer for
instruction and to give that part that is good to the exclu-
sion of the other. Harris r. Railroad Co., 160.
The erroneous admission of evidence is cured by its withdrawal
from the jury. Mauney v. Hamilton, 295.
In ejectment, an instruction as to color of title, the only issues
involved being the location of a boundary and adverse
possession, is not prejudicial. Pittman v. Weeks, 81.
It is not error for the trial judge in commenting upon the tes-
timony of witnesses to use the phrases, "the evidence tends
to show" and "evidence tending to show." Lewis v. Rail-
road Co., 382.
In an action against a railroad company for personal injuries, it
is error for the trial court to give an instruction which as-
sumes that the freight train became separated and that
a collision occurred, these being the facts in issue. Bum-
gardner v. Railroad, 438.
Where an instruction given at the request of a party contains
in substance an instruction objected to, an exception thereto
will not be sustained. Kelly v. Traction Co., 369.
The trial judge is not required to give instructions in the very
words in which they are requested. State v. Mehaffey, 1062.
Where the trial court uses the word "plaintiff” for “defendant,"
but the context shows that it was a mistake and a correc-
tion is made in another part of the charge, such mistake
was not prejudicial. Pittman v. Weeks, 81.
The time and order in which the trial court instructs relative to
negligence, contributory negligence and burden of proof,
in an action for personal injuries, is not sufficient ground
for a new trial. Lewis v. Railroad Co., 382.
The trial judge should not give instructions based upon hypothe-
ses upon which there is no testimony. Burton v. Mfg.
Co., 17.
The trial court is not required to give instructions in the lan-
guage of the prayers, here relative to circumstantial evi-
dence and reasonable doubt; provided the instructions
given are correct and cover the various phases of the tes-
timony. State v. Wilcox, 1120.
INSURANCE.
See "Attachment;" "Beneficiaries."
The commencement of foreclosure against insured property
terminates the policy, there being in the policy a provision
to that effect. Hayes v. Ins. Co., 702.
Where a policy of insurance is delivered it is based on the
status of the insured at the time of the application and the
insurance company assumes the risk of subsequent ill
health of the insured. Grier v. Ins. Co., 542.
The acknowledgement in a policy of insurance of the receipt
of a premium estops the company to test the validity of
the policy on the ground of the non-payment of the pre-
mium. Grier v. Ins. Co., 542.
The administrator of a debtor on whose life a creditor has
taken insurance cannot contest the validity of the policy or
its assignment by the creditors to a third party. Maynard
v. Ins. Co., 711.
Where a policy of insurance is delivered, its delivery, in the
absence of fraud, is conclusive that the contract is com-
pleted and is an acknowledgement that the premium was
paid during the good health of the insured. Grier v. Ins.
Co., 542.
An investigation of a loss by the insurer does not waive a
breach of a condition by the insured, the policy providing
that such investigation shall not operate as a waiver. Hayes
v. Ins. Co., 702.
Where the insured fails to state that the property was mort-
gaged, when in fact it was mortgaged, the policy providing
that the contract of insurance would be void if the insured
property was mortgaged, invalidates the policy, though the
omission was made without the intent to deceive. Hayes
v. Ins. Co., 702.
Where an insurance policy is wrongfully cancelled, the amount
of the recovery by the assured is the premiums paid with
interest thereon from the date of payments. Gwaltney v.
Ass. Society, 925.
In an action against an insurance company to recover premiums
paid on a life insurance policy, the assured may testify as
to a conversation between himself and the deceased agent
of the defendant company. Gwaltney v. Ass. Society, 925.
An unadjusted and unliquidated claim for a loss under a policy
of insurance against fire is subject to attachment in the
hands of the insurance company. Sexton v. Phonix Ins.
Co., 1.
A general agent of an insurance company may waive any stipu-
lation in a policy, notwithstanding a clause in the policy
forbidding it. Gwaltney v. Ins. Co., 925.
The receipt of an insurance policy, under the circumstances in
this case, without reading it does not bind the assured so as
to prevent him from proving a parol agreement between
himself and the agent of the company relative to the policy.
Gwaltney v. Ins. Co., 925.
Where an insurance policy is wrongfully cancelled, the amount
of the recovery by the assured is the premiums paid with
interest thereon from the date of payments. Galtney v.
Ins. Co., 925.
An acceptance of an overdue assessment by a fire insurance
company, after the property is burned, the company having
Vol. 132-77
notice thereof, is a waiver of the forfeiture of the policy.
Perry v. Ins. Co., 283.
Where children are born after the issuance of a life policy pay-
able to the children of the insured, they take as beneficia-
ries pro rata with the children previously born. Scull v.
Ins. Co., 30.
Where the losses of a beneficial association were paid from as-
sessments, and the certificate provided that annual dues
should amount to a certain sum and should be paid on a
certain day, and an agent soliciting for the association told
insured that he would have twenty days' notice "of any-
thing to be paid under the policy," such statement did not
cover annual dues, but referred merely to such things as
were uncertain, such as assessments for losses. Riddick v.
Asso., 118.
ISSUES.
The provisions of The Code requiring issues “arising upon the
pleadings" to be submitted to the jury are mandatory. Bur-
ton v. Mfg. Co., 17.
In this action for the reformation of a deed for mistake, the
issue, set out in the statement of facts, is sufficiently com-
prehensive. Warehouse Co. v. Ozment, 639.
In an action for injuries to property, where no exception is
taken and no additional issues are tendered, there is no
impropriety in including all forms of injury in a single issue
as to permanent damages. Pinnix v. Canal Co., 124.
In an action for damages for personal injuries, it is not neces-
sary for the jury to pass on the issue as to the last clear
chance where they find the defendant was negligent and
the plaintiff was not guilty of contributory negligence.
Harris v. Railroad Co., 160.
In ejectment by a husband and wife for land sold under execu-
tion against the husband, the issue set out in the opinion
is sufficient in form and substance to present every ma-
terial fact necessary to a determination of the case. Ray
r. Long, 891.
In an indictment for murder, there being no allegation that the
prisoner was insane at the time of the trial, no issue as
to insanity need be submitted. State v. Spivey, 989.
Where, in ejectment, four issues are submitted, one being as
to the statute of limitations, an instruction as to facts bear-
ing on this issue alone should be limited thereto. Pittman
v. Weeks, 81.
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