own affidavits; and evidence to controvert the merits of his defense is
irrelevant to the issue, and inadmissible. Griswold Linseed Oil Co. v
Lee, 761.
Bee Appeal, 5; Award, 1; COURTS; CREDITOR'S SUIT; HOMESTEADE, 6
JURISDICTION, 4–6; Marriage AND DIVORCE, 2; MORTGAGES, 9.
1. JURISDICTION OF SUPREME COURT may be invoked upon an appeal from a
judgment of the district court or of the court of appeals in actions that
relate to a freehold. Wyatt v. Larimer etc. Irr. Co., 280.
2 EFFECT OF.-When judicial tribunals have no jurisdiction of the subject
matter on which they assume to act, their proceedings are absolutely
void, but when they have jurisdiction of the subject matter, irregular.
ity, or illegality in their proceedings does not render them void, but
merely voidable. Town of Wayne v. Caldwell, 750.
& WHEN NOT ACQUIRED.- An appellate court acquires no jurisdiction of a
question of damages to be awarded in laying out a public highway,
when such highway is illegally laid out, on the ground that the pro-
ceeding of the lower tribunal in establishing such road are void for a
failure to comply with statutory requirements. Town of Wayne ▼.
Caldwell, 750.
▲ RIGHT OF Court to DetermINE—A court which is competent to decide
on its own jurisdiction in a given case can determine that question
at any time in the proceedings, whenever that fact is made to appear to
its satisfaction, either before or after judgment. Town of Wayne v.
Caklwell, 750.
5. ATTACHMENT-SERVICE BY PUBLICATION.-If property is attached and the
defendant served by publication only the court has jurisdiction to render
a judgment personal in form, but affecting only the property attached.
Neufelder v. German American Ins. Co., 166.
6. WATERS-FREEHOLD IN-JURISDICTION.-An action to enjoin a permanent
diminution of a perpetual right to have a certain quantity of water flow
through an irrigation ditch involves a freehold, and the supreme court
has jurisdiction to review the judgment in such action on appeal.
Wyatt v. Larimer etc. Irr. Co., 280.
7. WAIVER OF BY STIPULATION.-Mere irrregularities in judicial proceedings
may be waived by stipulation, but no such waiver can confer jurisdic
tion on any tribunal having no jurisdiction of the subject matter of
the action. Town of Wayne v. Caklwell, 750.
JURY AND JURORS.
See TRIAL, 3.
JURY TRIAL.
See REFORM SCHOOLS, 4.
JUSTICES OF THE PEACE
See REFORM SCHOOLS, 1-4.
See CORPORATIONS, 6; FRAUD, 3; MORTGAGES, 12.
See ATTORNEY and Client, 15.
1. DESTRUCTION OF PREMISES-RECOVERY OF RENT PAID IN ADVANCE—A
tenant in possession of premises for which he pays a monthly rental in
advance is entitled to recover the amount paid for that part of the
month remaining after the total destruction of the premises by fire or
otherwise. Porter v. Tull, 172.
2. FORFEITURE OF Leasehold Interest in Land is not implied nor favored
in law. Williams v. Vanderbilt, 486.
3. WAIVER OF FORFEITURE OF LEASE EFFECT ON MECHANIC'S LIEN.
Although generallyy an act done by a landlord knowing of a cause
of forfeiture by his tenant, affirming the existence of the lease and
recognizing the lessee as his tenant, is a waiver of such forfeiture, yet a
landlord with such knowledge and also knowledge that the premises are
undergoing repairs under the direction of the lessee, but with no re-
ason to believe that the latter is not able to pay his debts, is not obliged
to assume that the employees will not receive their money from the
lessee, and declare an immediate forfeiture to save himself from liability
under a mechanic's lien. Williams v. Vanderbilt, 486.
4. IMPROVEMENTS-EQUITABLE LIEN FOR AFTER FORFEITURE OF LEASE. —
A party who repairs buildings on leased premises under a contract with
the tenant, but without authority or contract express or implied from
the landlord to pay therefor, is not entitled to an equitable lien on the
premises for the value of the improvements, if the lease is declared for.
feited for nonpayment of rent as provided for therein, subsequent to
the time when the improvements are completed. Williams v. Vander-
bilt, 486.
5. FORFEITURE OF LEASE-A DEMAND FOR RENT on the day it falls due
is not necessary in order to cause a forfeiture of the lease. The lessor
may declare a forfeiture on some subsequent day. Williams v. Vander-
bilt, 486.
6. ONE LESSEE Cannot DESTROY RIGHTS of his co-lessees nor extinguish
their title by conveying to his lessor. Williams v. Vanderbilt, 486.
7. SURRENDER of written lease may be made by parol, by abandonment of
the premises by the tenant and entry by the landlord, or by an executed
agreement to surrender. Williams ▼. Vanderbilt, 486.
8. SURRENDER OF LEASED PREMISES operates from the execution of a new
lease with the tenant's consent to another who enters thereunder and
pays rent, or from an agreement, either express or implied, to release
the original lessee and accept a new tenant, or from an actual and con-
tinued change of possession by the mutual consent of the parties Will-
iams v. Vanderbilt, 486.
9. ASSUMPSIT-CONSTRUCTIVE NOTICE OF MATERIAL FACT, WHen Not ax
ESTOPPEL.-If a landowner has taken water to a mill, and leased it in
connection therewith, the lessee is entitled, in the absence of actual
notice, to infer that there is no restriction upon the water rights, and
mere constructive notice from the record of a deed limiting those rights
will not estop him from recovering rent which he has paid to the lessor
in the belief that no such limitations existed. Bedell v. Wilder, 871.
10. ASSUMPSIT-RECOVERY OF RENT BY LESSEE UPON FAILURE OF LESSOR'S
TITLE.-Where a lessee, after accepting a lease of land and water rights,
discovers that another person lays claim to the water rights, and the
lessor thereupon insists that he is entitled to the rent, but promises to
do "whatever his contract calls upon him to do," and, if the contract
requires it, "to stand between the lessee and the other claimant," the
rent which the lessee is afterwards forced to pay to such claimant, when
the proprietorship of the water rights has been established, may be re-
covered from the lessor. Bedell v. Wilder, 871.
See MECHANIC'S LIEN, 7-16.
1. CONSENT.-TO CONSTITUTE LARCENY there must be a trespass, that is,
a taking of property without the consent of the owner, coupled with an
intent to steal the property so taken; and the crime is not committed,
when, with the consent of the owner, his property is taken, however
guilty may be the taker's purpose and intent. Connor v. People, 295.
2 DECOYING INTO CRIME.-Larceny is not committed when property is
taken with the consent of the owner, although such consent is given for
the purpose of decoying and entrapping the party suspected, and the
latter, when taking the property, did not know of the consent which
prevented the criminal quality from attaching to the act. Connor v.
People, 295.
3. EVIDENCE-CHARACTER OF AMBIGUOUS TRANSACTION, WHEN MAY BE
SHOWN BY PROOF OF OTHER CRIMES.-On a trial for larceny, in which
the only direct evidence for the state consists of the narrative of an
accomplice, which, as regards the act set forth in the indictment, leaves
room for a reasonable doubt as to the felonious participation of the
defendant, such participation may be established by other portions of
the same narrative showing that, on the same expedition during which
the larceny is alleged to have been committed, the defendant had
actively engaged in abstracting other personal property from various
places, and by the testimony of the owners of the stolen articles that
they were in the places from which the accomplice asserts them to have
been taken, were missed about the time at which the accomplice said
the expedition took place, and were afterwards found and identified on
the defendant's premises. But evidence of a larceny committed by the
defendant and his accomplice during a second expedition, undertaken
upon the renewal of a purpose entertained before the first expedition, has
no legitimate tendency to support the charge, and should be excluded.
State v. Kelley, 884.
See CHATTEL MORTGAGES, 1, 3; LANDLORD AND TENANT; MECHANIC'S LIEN,
CONSTITUTIONAL LAW. THE LEGISTATURE POSSESSES THE WHOLE LEGISLA
TIVE POWER of the
by the constitution.
people, except so far as such power may be limited
People v. Cannon, 666.
See MECHANIC'S LIEN, 5.
Bee INSURANCE, 1-6; LIENS; SHERIFTS, L.
LICENSE TO ENTER PREMISES IN CASE OF FIRE.—In case of fire in a building
the public authorities, fire-patrol men, or private parties may enter upon
adjacent premises, as they may find it necessary or convenient, in their
efforts to extinguish or to arrest the spread of the flames, and though
they have no permission to enter they have an implied license by law to
do so in order to save the property. Gibson v. Leonard, 376.
Bee BROKERS, 1; CONTRACTS, 10; ELECTRIC LIGHT COMPANIES; INTER-
STATE COMMERCE, 6, 10; Railroads, 13; Real Property, 14.
CREDITOR'S BILL-Lien CreatED BY.—The filing of a creditor's bill and the
service of process creates an equitable lien upon lands fraudulently con-
veyed by the judgment debtor, and when the creditor has no lien on the
property sought to be reached it is the filing of the bill in equity after
the return of the execution at law which gives him a specific lien. In
such case the lis pendens is an equitable levy, and creates an equitable
lien on the lands, and it is wholly unimportant that the final decree
establishing the lien and ordering a sale is not rendered until long
after the judgment at law has ceased to be a lien, by force of the statute
upon the real estate of the judgment debtor. Davidson v. Burke, 367.
See CREDITOR'S SUIT; JUDGMENTS, 4, 5, 11; LANDLORD AND Tenant, 4;
MECHANIC'S LIEN, 15; MORTGAGES, 13; NOTICE, 1: PROCESS.
1. WHEN WILL RUN AGAINST MUNICIPALITIES.-The statute of limitations
runs against municipal corporations such as cities, towns or counties,
cxcept as to the property devoted to a public use, or held upon a public
trust, and contracts and rights of a public nature. City of Bedford v.
Willard, 563.
2. WHEN RUNS AGAINST LAND Owned By MUNICIPALITY.-When land is
held by a county in its private capacity, subject to sale by it to private
individuals, and is by it conveyed to a city, the statute of limitations
runs against both county and city in favor of an adverse holder for the
statutory period. City of Bedford v. Willard, 563.
IF AFTER THE DIVORCE OF A HUSBAND AND WIFE lands which they
before held as tenants by the entireties are sold under an execution
against him, and the purchasers take and maintain possession of the
whole thereof, claiming title adversely to the wife, her right to main.
tain an action for the recovery of such land is barred by the statute of
limitations of Tennessee, if she has not brought such action within five
years after such adverse possession began. Hopson v. Fowlkes, 120.
4. RESIDENCE OUT OF STATE. -When one has an established residence
within the state he can only "depart from and reside outside the
state" by changing his residence and taking up an actual residence
elsewhere, as distinguished from a temporary sojourn, and the fact that
he departs from and remains out of the state for some considerable time
without changing his permanent place of residence does not interrupt
the running of the statute of limitations. Kerwin v. Sabin. 645.
RESIDENCE OUT OF STATE.-A Congressman who leaves his home in the
occupancy of servants during sessions of Congress and then resides with
his family in rented premises at the national capital, returning to and
occupying his permanent home during congressional recesses, without
intending to change his place of residence, does not at any time reside
out of the state so as to interrupt the running of the statute of limita-
tions. Kerwin v. Sabin, 645.
1. WHAT IS.-A lottery is a scheme by which, on one's paying money
or some other thing of value, he obtains the contingent right to
have something of greater value, if an appeal to chance, by lot or other.
wise, under the direction of the manager of the scheme, should decide
in his favor. A valuable consideration must be paid, directly or
indirectly, for a chance to draw a prize by lot, to bring the transaction
within the class of lotteries or gift enterprises that the law prohibits as
criminal. Cross v. People, 292.
2. WHAT DOES NOT CONSTITUTE.-A gratuitous distribution of property
by lot or chance, if not resorted to as a device to evade the law, and
no consideration is derived directly or indirectly from the party receiv.
ing the chance, does not constitute a lottery prohibited by law. Cross
▼. People, 292.
& WHAT DOES NOT CONSTITUTE. -The gratuitous distribution of busi-
ness cards to purchasers and nonpurchasers alike which entitle the
holders to a chance in a drawing for a piano to be determined as the
holders of such chances might elect is not a lottery prohibited by law.
Cross v. People, 292.
4. CONSIDERATION FOR CHANCE.-The fact that chances in a drawing
for a piano are gratuitously and indiscriminately given away to
induce people to visit a certain store with the expectation that they
may purchase goods and thereby increase trade is a benefit too remote
to constitute a consideration for the chances and make it a lottery pro-
hibited by law. Cross v. People, 292.
1. OFFICE AND OFFICERS-MANDAMUS WILL LIE TO COMPEL ACCEPTANCE
of a municipal office by one who, possessing the requisite qualifications,
refuses to accept the office after he has been duly elected or appointed
thereto. People v. Williams, 514.
2 OFFICE AND OFFICERS-MANDAMUS TO COMPEL ACCEPTANCE OF OFFICE.
One elected to an office owes a duty to the public to qualify himself
therefor, and to enter upon the discharge of his duties, and upon a re-
fusal so to do he may be compelled by mandamus to assume the office
and take upon himself the duties thereof, although he is also subject to
indictment or fine for a failure to do so. People v. Williams, 514.
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