premises for a part of the term embraced in the covenant, the fact
alone that the tenant was deprived of such possession under a judg-
ment of eviction in an action of unlawful detainer, does not deprive
him of the right to maintain his action, provided the other elements
essential to the maintenance of the action are sufficiently alleged and
proved. (Chestnut v. Tyson, 101.
4. LANDLORD AND TENANT-LEASES-BREACH OF COV-
ENANT FOR QUIET ENJOYMENT-EVICTION-NOTICE OF
SUIT.-If a tenant evicted under a judgment obtained by a stranger
having title paramount to the landlord, brings an action against the
landlord upon a breach of covenant for quiet enjoyment contained in
the lease, and seeks to recover special damages for expenses incurred
in defending the action under which he was evicted, he must allege
and prove, in order to maintain his action, that he gave the landlord
certain and explicit notice, either oral or in writing, of such action
resulting in his eviction, and that he expressly requested him to
attend and defend such action. (Chestnut v. Tyson, 101.)
5. LANDLORD AND TENANT-LEASES.-COVENANTS FOR
QUIET ENJOYMENT do not warrant against the wrongful eviction
of the covenantee by a third person, nor afford any remedy for dam-
ages consequent upon such wrongful eviction; and if the gravamen
of an action is an eviction by strangers to such covenant, the plain-
tiff must allege and prove that such third person had lawful title
superior to that held by the covenantor at the time of the conveyance
by him to the plaintiff, and the latter must also specify who are the
holders of such paramount title. (Chestnut v. Tyson, 101.)
6. LANDLORD AND TENANT-LEASES-BREACH OF COV-
ENANT FOR QUIET ENJOYMENT-PLEADING.---An allegation by
a tenant in an action against his landlord to recover for a breach of
covenant for quiet enjoyment contained in his lease, that he was.
evicted from the leased premises under judgment and writ of resti-
tution issued in an action by strangers claiming their right of pos-
session and title under and through such landlord, and that said
judgment was obtained and plaintiff evicted under title paramount
to that of the landlord, is insufficient as an averment of breach of
covenant, or of title paramount in the strangers at the time of the
execution of the lease. (Chestnut v. Tyson, 101.)
7. LANDLORD AND TENANT-DISTRESS LAWS-CON-
STRUCTION.-Laws which enlarge the common-law remedy by dis-
tress must be strictly interpreted. (Kellogg Newspaper Co. v. Peter-
son, 300.)
8. LANDLORD AND TENANT-LEASE ATTEMPTING TO RE-
SERVE TITLE TO CROPS TO SECURE THE PAYMENT OF
RENT.--If land is let under an agreement that a cash rent shall
be paid, that the title of the crops raised shall remain in the lessor,
in whose name they shall be placed in a warehouse by the lessee,
that they shall then be sold, and the rent paid out of the proceeds,
and the residue, if any, shall go to the lessee, and that no part of
the crop shall at any time be subject to his disposal, the contract
is an attempt to create a secret lien on the growing crop to secure
the payment of the rent, and, when not executed in the manner
prescribed for chattel mortgages, cannot accomplish that purpose,
and the crops raised are subject to attachment against the lessee.
(Stockton Sav. etc. Soc. v. Purvis, 210.)
9. LANDLORD AND TENANT-FORFEITURE BY ASSIGN-
MENT.-If a lease contains a condition that it shall not be assigned
without the written consent of the lessor, and provides for a forfeit-
ure if the condition is broken, the covenant is broken by the lessee's
voluntary assignment for the benefit of creditors, and the lease may
be forfeited for the breach, because such an assignment transfers
the lessee's interest by his voluntary act, and not by operation of
law. (Medinah Temple Co. v. Currey, 320.)
10. LANDLORD AND TENANT-ASSIGNMENT-WAIVER OF
FORFEITURE-RENT.-If a lessee violates a condition of his lease
by making a voluntary assignment for the benefit of creditors, for
which breach the lease may, by its terms, be forfeited, and the as-
signee occupies the premises for a time without electing whether to
accept or to refuse the lease, the landlord's right to declare a for-
feiture, because of such assignment, is not waived by his receiving
rent from the assignee for the period covered by the latter's occupa-
tion of the premises. (Medinah Temple Co. v. Currey, 320.)
11. LANDLORD AND TENANT-LIEN FOR RENT.-Except as
to crops grown or growing upon the demised premises, a landlord has
no lien for rent upon his tenant's property, until seizure by distress
or other proceeding. Hence, as against the landlord's right of dis-
tress, the tenant may sell his property, and confer title thereto, where
the sale is made in good faith on the part of the buyer and seller.
(Kellogg Newspaper Co. v. Peterson, 300.)
See Assignment for Benefit of Creditors.
1. TO CONSTITUTE LARCENY there must be a felonious taking
and carrying away of personal property. There must be such a
taking that the accused acquires dominion over the property, fol-
lowed by such an asportation or carrying away, as to supersede the
possession of the owner, for an appreciable period of time. (Molton
v. State, 97.)
LARCENY-JURISDICTION.-IF GOODS ARE STOLEN IN
ONE STATE OR COUNTRY, and taken by the thief into another
the courts of the latter have not jurisdiction to try him for his of-
fense, unless such jurisdiction has been expressly conferred by
statute. (Strouther v. State, 852.)
3. LARCENY-INTENT-APPROPRIATION.-If the property of
another is taken with intent, on the part of the taker, to retain it
until he is paid a reward for its restoration to its owner and in the
event of not receiving such reward, not to return it at all, the taking
is larceny. (Dunn v. State, 714.)
4. LARCENY-INTENT - APPROPRIATION. - If one person
takes the property of another with intent to hold it for the purpose
of obtaining a reward for its return, but without any intention of de-
priving the owner of the property permanently, and with intent to
return it in case no reward is offered, the taking is not larceny.
(Dunn v. State, 714.)
5. LARCENY-TAKING OF POSSESSION NECESSARY.-
Although an accused may, with intent to steal, have killed an ani-
mal, and may have been near enough to take possession and carry
it away, yet the offense of larceny was not complete until the pos-
session of the owner was severed by the taking of actual possession
by the accused. (Molton v. State, 97.)
6. LARCENY-CONFESSION AS EVIDENCE.-A statement or
confession made by an accused at his preliminary examination, after
he has been duly cautioned, is admissible against him, although the
examining magistrate is the owner of the property which the de-
fendant is accused of stealing. (Tabor v. State, 726.)
7. LARCENY-EVIDENCE.-Family quarrels between the prose-
cutor and the accused antedating, and not in any manner connected
with, the larceny are not admissible in evidence. (Tabor v. State,
726.)
8. LARCENY. EVIDENCE that, on the night before a trial for
larceny the parties having the accused in charge were drinking wine
and playing cards, is irrelevant and inadmissible. (Tabor v. State,
726.)
9. LARCENY – EVIDENCE – ELECTION.-If, on a trial for
theft of a hog, the evidence tends to show that another hog was lost
by the owner of both, but it does not certainly connect the accused
with the theft of more than one hog, and he admits the killing of
only one, while the meat of but one was found in his possession, the
prosecution cannot be compelled to elect as to which hog a conviction
will be claimed. (Tabor v. State, 726.)
See Landlord and Tenant; Sales, 1.
1. LEGACIES, WHEN PAYABLE.-If a statute declares that
legacies are due and deliverable at the expiration of a year after the
testator's decease, no order of the probate court is necessary to
make them bear interest after such year. (In re Williams, 224.)
2. LEGACY, RESIDUARY, WHAT IS NOT.-A provision for
the payment of certain legacies after which certain others shall
be paid does not make the latter residuary legacies. (In re Williams,
224.)
3. LEGACIES, WHEN BEAR INTEREST.-Though a will de-
clares that the executor shall not be required to pay certain legacies
until such time as it may be practicable to do so, having regard to
the beneficial management of the estate, they bear interest com-
mencing one year from the testator's death, if the statute declares
that legacies are due and deliverable at the expiration of one
year after such decease, and bear interest after they are due and
deliverable. The pendency of a contest of the will of the decedent,
owing to which no distribution of the estate nor payment of the
legacies is possible, does not deprive the legatees of their right to
interest. (In re Williams, 224.)
LEGISLATURE.
LAW-LEGISLATIVE
1. CONSTITUTIONAL
POWERS.-The
legislature of a state is clothed with all powers of legislation that do
not conflict with the constitution of the state, or of the United States,
and it cannot part with such governmental powers. (People v. Kirk,
277.)
2. COMMON LAW-LEGISLATIVE POWERS.-The powers of
the legislature are in no manner limited or restricted by the common
law of a particular state, which owes its existence to an act of the
legislature. (People v. Kirk, 277.)
3. CONSTITUTIONAL LAW-UNWISE OR DETRIMENTAL
LEGISLATION.-The propriety or impropriety of legislation is a
matter of which the legislative department of the state is the sole
judge, and, unless an act infringes upon some provision of the state
or federal constitution, or attempts to part with governmental power,
the courts will not declare it invalid, because it may be unwise or
detrimental to the best interests of the state. (People v. Kirk, 277.)
4. CONSTITUTIONAL LAW-DELEGATION OF LEGISLA-
TIVE POWER.-The constitutional maxim which prohibits the leg-
islature from delegating its power to any other body or authority is
not violated by vesting municipal corporations with certain powers
of legislation as to matters purely of local concern, of which the par-
AM. ST. REP., VOL. LIII. —64
ties immediately interested are supposed to be better judges than the
legislature. (Chicago v. Stratton, 325.)
5. STATUTES-GRANT OF MEANS TO ACCOMPLISH END.-
A grant of legislative power to do a certain thing carries with it the
power to use all necessary and proper means to accomplish the end:
and the legislature may authorize others to do things which it might
properly, but cannot conveniently or advantageously, do itself. (Chl-
cago v. Stratton, 325.)
6. POLICE POWER-NATURE OF.-LEGISLATIVE POWER to
subserve the general welfare by all needful and proper regulations
in the interest of health and safety, is inherent in the sovereignty of
the state, and cannot be bartered away by contract or otherwise.
(Chicago etc. R. R. Co. v. State, 557.)
7. CONSTITUTIONAL LAW-STATUTES DEPENDING UPON
A CONTINGENCY.-It is competent for the legislature to pass a law,
the ultimate operation of which may, by its own terms, be made to
depend upon a contingency. Hence, while it cannot delegate its
power to make a law, it can make a law to delegate a power to de-
termine some fact or state of things upon which the law makes, or
Intends to make, its own action depend. (Chicago v. Stratton, 325.)
See Contempt, 3; Elections; Police Power, 3, 5; Waters, 8, 9, 12
LICENSE, RIGHT TO REVOKE.—An oral license to enjoy a
permanent privilege on the land of another, as to maintain a ditch
thereon intended for permanent use, is revocable by the licensor,
although money has been expended thereon by the licensee. (Hath-
away v. Yakima Water etc. Co., 874.)
1. LIMITATIONS OF ACTIONS-REAL ESTATE-TEMPO-
RARY ABSENCE.-A statute of limitations, providing that the tem-
porary absence of defendant from the state shall not be accounted or
taken as a part of the time limited, applies to all suits alike, includ-
ing actions for the recovery of real estate, and, therefore, applies to
an action of trespass to try title, but does not apply to persons who
were nonresidents of the state at the time the cause of action ac-
crued. (Huff v. Crawford, 763.)
2. LIMITATIONS OF ACTIONS-REAL
RARY ABSENCE.-A statute of limitations, providing that the tem-
porary absence of defendant from the state shall not be accounted or
taken as a part of the time limited, is applicable to real as well ar
to personal actions. (Wilson v. Daggett, 766.)
3. LIMITATIONS OF ACTIONS-REAL ESTATE-ABSENCE
OF DEFENDANTS.-In an action of trespass to try title where the
defendant has held possession by an agent, and has been absent from
the state, and a resident of another state, during the time necessary
to complete the bar, the running of the statute of limitations, con-
cerning absent defendants, is suspended during the defendant's ab-
sence, if he was a resident of the state at the time the adverse pos-
session was taken by his agent, but, if he was not, the statute does
not apply. (Huff v. Crawford, 763.)
4. LIMITATIONS OF ACTIONS-VISIT BY NONRESIDENT-
"RETURN."-If a nonresident person comes to this state for a tem-
porary purpose only, after having taken adverse possession of land
by tenant, and remains here but a short time upon business, his visit
Is not "a return to the state," within the meaning of a statute of
limitations respecting absent defendants, and his absence, after such
visit, does not suspend the running of the statute in his favor. (Wil-
son v. Daggett, 766.)
5. LIMITATIONS BY ACTIONS-POSSESSION OF NONRESIDENT BY TENANT-TEMPORARY PRESENCE.-A person who has at all times been a nonresident of this state, but who was tenporarily within the state before taking adverse possession of land by tenant, though he was absent when such possession was taken, and has ever since been absent, is not a person "without the limits of this state," within the meaning of a statute of limitations respecting absent defendants. (Wilson v. Daggett, 766.)
6. LIMITATIONS OF ACTIONS-POSSESSION OF NONRESIDENT BY TENANT.-As applied to real actions, where adverse pcssession of land has been taken by tenant, a statute of limitations providing that the temporary absence of defendant from the state shall not be accounted, or taken as a part of the time limited, does not apply to those who were not residents of the state when possession was taken, unless, perhaps, they took possession in person. (Wilson v. Daggett, 766.)
7. LIMITATIONS OF ACTIONS.-DEBTS AGAINST A DECEDENT'S ESTATE evidenced by his written obligation under seal for the payment of money are not barred by the statute of limitations until the expiration of ten years from maturity. (Cobb v. Garner, 136.)
8. LIMITATIONS OF ACTIONS-NEGOTIABLE MENTS.-A PAYMENT BY ONE JOINT DEBTOR, or an extension of time procured by him, without the knowledge, assent, or subsequent ratification by the other, does not stop the running of the statute of limitations as to the latter. Hence, such acts, by one joint debtor on a promissory note, will not keep the note alive against his codebtor. (Boynton v. Spafford, 274.)
9. CONSTITUTIONAL LAW.-A STATUTE OF LIMITATION WHICH ATTEMPTS TO CUT OFF A RIGHT OF A PROPERTY owner without affording him a just and reasonable opportunity to try his rights in the courts savors of spoliation and pillage, and is unconstitutional. (Hayes v. Douglas County, 925.)
10. STATUTE OF LIMITATIONS.-SUMMONS issued but neither docketed, nor returned served, nor followed by an alias summons, does not stop the running of the statute of limitations. (Neal v. Nelson, 590.)
MANDAMUS-RAILROADS-VIADUCTS.-The duty of railroad companies to construct or repair viaducts, which is imposed upon them by a city charter, and ordinance, may be enforced by a writ of mandamus, especially where authority to proceed in that way is expressly conferred by the charter. (Chicago etc. R. R. Co. v. State, 557.)
1. DIVORCE-JURISDICTION OVER CHILDREN NOTIN THE STATE.-In a suit for divorce against a defendant who had taken his children, and fled with them from the state before it was commenced, a judgment awarding to plaintiff the custody and care of such children is void, if the process was served beyond the state. (De La Montanya v. De La Montanya, 165.)
2. DIVORCE AGAINST ABSENTEE, JURISDICTION AWARD ALIMONY.-A court in a sult for divorce has no jurisdic tion to award alimony as against a defendant when he was not within the state when the suit was commenced, nor afterward, nor did
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