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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