personal representative of deceased to sell land to make.
assets to pay his debts, when the personal property is insuffi-
cient, and upon his failure to do so an action will lie in the
Superior Court by a single creditor to subject the land to the
payment of his claim, though the action may be converted
afterwards into a creditor's suit. Yarborough v. Moore, 116.
3. Superior Court-Procedure-Appellee's Laches-Waiver.-By
docketing an appeal from a justice's court in the Superior
Court, the latter court acquires, derivatively, the jurisdiction
of the justice, and nothing more; and while the appellant may
lose his appeal to the Superior Court unless perfected in the
manner prescribed by the statute, the appellee must not
sleep upon his rights, but make the motion to dismiss in apt
time. Love v. Huffines, 378.
An appellee may by his own laches or conduct waive
his right to dismiss an appeal from a justice's court to the
Superior Court for failure of appellant to perfect his appeal
under Revisal, secs. 607 and 1493, as such matters relate only
to irregularities in the procedure and not to the inherent jur-
isdiction of either court; and the appellee's motion under the
latter section is too late when made upon the trial of the
cause in the Superior Court after evidence has been intro-
duced. Ibid.
5. Courts Special Appearance-Continuance of Motion-Waiver.
-Jurisdiction in case of actions in personam can only be
acquired by personal service of process within the territorial
jurisdiction of the court, or by acceptance of service, or by
general appearance, actual or constructive, this last usually
arising by reason of some motion in the cause which can only
be made in behalf of one who submits his case generally to
the court's jurisdiction. Warlick v. Reynolds, 606.
6. Courts-Attorneys at Law-Special Appearance-Continuance
of Motion-Waiver.-By entering a special appearance, ex-
pressly restricted to the special purpose of moving to dismiss
for want of jurisdiction, with a request for a temporary con-
tinuance of such motion, an attorney does not enter a general
appearance, actual or constructive, or waive any rights of his
client to dismiss accordingly. Ibid.
7. Courts - Injunction — In Personam.-An injunction can only
operate in personam, and unless jurisdiction of the party can
be acquired, the attempted procedure is a nullity, and on
motion properly made it should be dismissed. Ibid.
8. Same-Promissory Notes-Non-Residents—Situs-Proceedings
Quasi in Rem.-Proceedings to restrain the negotiation of a
note in the hands of a holder, a non-resident and beyond the
borders of the State, should be dismissed, and not retained
by the courts of our State as a proceeding quasi in rem. The
situs of the note, in matters of injunction, is governed by the
general rule, that it is at the home of the creditor, differing
from the exception to this rule made in proceedings in attach-
ment. Ibid.
9. Courts-Demurrer-Procedure.-A party defendant may enter
a special appearance for the purpose of demurring to the
jurisdiction of the court, and have the court determine and
inform him of the validity of proceedings affecting a sub-
stantial right, and he is not required to test the validity by
disobedience, and thereby risk the process of contempt. Clark
v. Mfg. Co., 110 N. C., 111, cited and approved. Ibid.
10. Courts - Non-Residents — Damages — Attachment-Situs of
Credits.—While an order may not be granted restraining the
negotiation of a promissory note in the hands of a holder who
is a non-resident of the State and beyond its borders, the
action may not be dismissed when there are allegations of
damages sustained by reason of fraud in the procurement of
the instrument and an attachment issued in the cause has
been levied on indebtedness of resident debtors to the holder,
within the jurisdiction of the court. Ibid.
11. Recorder's Court-Constitutional Lawr.-The act of 1909, chap.
633. sec. 4, creating a Recorder's Court of Nash County, giv-
ing it the jurisdiction of courts of a justice of the peace and
additional jurisdiction of offenses below a felony, declaring
such to be petty misdemeanors, and providing for an appeal
to the Superior Court, does not contravene the State Consti-
tution. Constitution, Art. IV, secs. 2, 12 and 14. The Court
follows former precedents. State v. Collins, 648.
12. Same-Superior Court-Quashing Bill.-An indictment for an
assault with a deadly weapon is a misdemeanor and cogniz-
able by the Recorder's Court of Nash County (Laws 1909,
chap. 633), and the Superior Court of that county properly
quashed the bill for want of original jurisdiction, the indict-
ment having been found after the law creating the recorder's
court had been enacted. Ibid.
13. Appeal and Error-Forma Pauperis-Defective Affidavit-Dis-
missal of Appeal.-The affidavit for an appeal in forma pau-
peris is defective which does not aver "that the appellant is
advised by counsel learned in the law that there is error in
matter of law," etc., Revisal, sec. 597; and the compliance
with the provisions of this section being jurisdictional, the
appellee can have the appeal dismissed as a matter of right
upon the failure of appellant to comply therewith. Honey-
cutt v. Watkins, 652.
14. Taration Prohibitive - Non-Intoxicants—“Near Beer.” — By
requiring the payment of an annual license tax to the State
by those who deal in "near beer," the General Assembly has
recognized and legalized its sale, and a prohibitive tax there-
on levied by a municipality is void. State v. Danenberg, 718.
15. Same-License-Reasonableness--Courts.-The reasonableness
or unreasonableness of a tax levied exclusively for revenue is
a matter generally within the exclusive province of the legis
lative department, and not a matter for the courts; but when
a license fee is taxed upon a legitimate business as a police
regulation also, the courts will consider whether it is so un-
reasonable as to be prohibitive. Ibid.
16. Same-Police Powers.--A municipality having the power by its
charter to levy a license tax on dealers in "near beer" and
kindred drinks may consider the question both from the
standpoint of revenue and police regulations, and with regard
to the extraordinary opportunities it affords for violating the
prohibition law and the extra police surveillance it entails.
Ibid.
1. Improper Conduct-Court's Discretion.-While it is not proper
conduct for a party litigant to talk to a juror sitting in his
cause, it is within the discretion of the trial judge to set the
verdict aside, and his decision is not reviewable, when he
had not said anything relating to the cause then being tried,
and when it was found by the judge and appears to be harm-
less in its effect. Baker v. Brown, 12.
2. Motions-Set Aside Verdict — Additional Evidence — Court's
Discretion.-When the trial judge has heard the evidence
adduced upon a motion to set aside a verdict because of the
improper conduct of a party in talking to a juror in his
cause, it is within his discretion to refuse additional evidence,
and his decision is not reviewable. Ibid.
JUSTICE'S COURT. See Courts; Judgments, 19.
JUSTIFICATION. See Principal and Surety, 1, 2.
“KICKING CARS." See Railroads, 21, 22.
LACHES. See Sales, 16; Procedure, 11, 12, 15, 19, 20.
Lessor and Lessee-Monthly Payments-Lease-Tenant by the
Year-Contract, Interpretation of.-A lessee paying rent by
the month, but under a lease providing that it would be
renewed from year to year for a period of four years, with-
out change in its terms, upon his request in writing, and hold-
ing over from the first year without making such request, is
a tenant by the year. And when he vacates the premises be-
fore the expiration of the year he is liable to the lessor for
the stipulated rent for the unexpired term, provided the lat-
ter, with reasonable diligence, could not have rented to
another within that time. Holton v. Andrews, 340.
LAPSE OF TIME. See Equity, 5.
LARCENY. See Carriers of Passengers, 6.
Criminal Actions—and Receiving-Evidence-Questions for Jury.
Evidence is sufficient to go to the jury upon the trial for
larceny and receiving, which tends to show that the articles
were found in the defendant's home two weeks after the
theft; that tracks led from the place of the theft to defend-
ant's home; he denied the theft; said that he knew that the
articles afterwards identified were not there, appeared ex-
cited, and remained silent when his wife claimed them for
his own and in his hearing. Evidence that the goods were
found in defendant's home two weeks after the commission
of the theft is of itself sufficient. State v. Record, 695.
LAST CLEAR CHANCE. See Negligence, 42.
LAST SICKNESS. See Wills, 7.
LATENT DANGER. See Master and Servant, 13.
LATENT DEFECT. See Damages, 23.
LEASE. See Lessor and Lessee, 1.
LEGISLATIVE ACT. See Constitutional Law, 1; Statutes.
LEGISLATIVE AGENCY. See Corporation Commission, 4.
LEGISLATIVE POWERS. See Constitutional Law, 3, 4; Statutes.
16, 18, 19, 20; Constitutional Law, 3, 4; Corporation Commis-
sion, 5, 9; Venue, 1, 2.
LEGITIMATE CHILDREN. See Evidence, 29.
Monthly Payments-Lease-Tenant by the Year-Contract, Inter-
pretation of.-A lessee paying rent by the month, but under
a lease providing that it would be renewed from year to year
for a period of four years, without change in its terms, upon
his request in writing, and holding over from the first year
without making such request, is a tenant by the year. And
when he vacates the premises before the expiration of the
year he is liable to the lessor for the stipulated rent for the
unexpired term, provided the latter, with reasonable dili-
gence, could not have rented to another within that time.
Holton v. Andrews, 340.
LETTERS. See Contracts, 37.
LEVY. See Taxation, 5; Injunctions, 8.
Judgments-Dieta-Evidence.-In an action for libel, brought in
the State court, for publishing that one A., while judge of a
certain special United States court, was corruptly influenced
in his judgment in allowing certain fees to attorneys in dis-
proportion to the value of the services rendered, the opinion
of a Justice of the Supreme Court of the District of Colum-
bia, delivered in an action to enjoin the payment of the fee,
in which he stated as his opinion, that the fees were reason-
able is incompetent as evidence, particularly in view of the
decision of such Justice that his Court had no jurisdiction to
pass upon the fee. State v. Butler, 672.
See Carriers of Freight, 4; Intoxicating Liquors, 1, 2, 6,
9, 10; Negligence, 32.
LIEN. See Mortgagor and Mortgagee, 5, 7, 9.
1. Deeds and Conveyances · Assignment Priorities Taxes
Levy. The sheriff and tax collector of a county are not enti-
tled to priority of payment of taxes by the trustee of a corpo-
ration under a deed of assignment over creditors who reduced
their claims to judgment and had execution issued before the
assignment was executed and recorded, the property being
personal and they having failed to levy for the taxes due
them, respectively. Revisal, 2863. Alexander v. Farrow, 320.
2. Corporations-Officers-Laborers and Workmen Statutory―
Interpretation of Statutes.-Officers and owners of a corpora-
tion are not entitled, under Revisal, sec. 1206, to priorities of
payment for work and labor done by them over the other
creditors, as such officers do not come under the meaning of
the words "laborers" and "workmen" used in the statute, and
were not so intended. Ibid.
3. Sub-Contractor-Material Men-Statutory Provisions.-Those
who have furnished a sub-contractor materials for the erec-
tion of a building and who have not acquired their liens on
the property of the owner in accordance with the provisions
of the statute, Revisal, secs. 2020, 2021, stand only in the
relation of creditors of the sub-contractor. Hall v. Jones, 419.
4. Same Contractor — Order —Acceptance.-When an order on
the contractor given by a sub-contractor in favor of one fur-
nishing the latter materials for the building has been uncon-
ditionally accepted by the former, to be paid from moneys
coming into his hands under his contract with the owner, it
is a valid assignment of such moneys pro tanto, and good
against the claims or demands of other material men who
have likewise furnished the sub-contractor and who have not
notified the contractor or acquired liens on the building in
accordance with the statutory provisions. Ibid.
5. Same-Future Payments — Receiver — Completing Contract.—
When, by unconditionally accepting an order given on him by
a sub-contractor in favor of one furnishing the latter mate-
rial for the building, the contractor has made a valid assign-
ment of funds coming into his hands under his contract with
the owner for the payment of the debt, and thereafter the
sub-contractor, a corporation, goes into the hands of a receiver
who, by agreement, satisfactorily completes the work, the
assignment is valid as to such sum or sums of money as may
have become due under the accepted order as against mate-
rial men, creditors of the sub-contractor, of whose claims the
contractor had not been notified, and who had not acquired
a lien under the statutory provisions. Ibid.
6. Contractor-Contracts, Interpretation of Payments Reserved
-Material Men-Trusts and Trustees.-A provision in a con-
tract between the owner and a contractor to erect a building,
that the architect shall make a monthly estimate of the
labor and material put into the building during each preced-
ing month, and the owner pay the contractor therefor after
reserving a certain per cent, is for the benefit of the con-
tractor and the protection of the owner, and does not create
a trust in the reserved payments in favor of laborers and
material men of a sub-contractor. For the material men to
acquire a lien they must proceed under the statutes. Ibid.
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