WHITE v. BEAMAN. The jury on the trial, found by their verdict, that the single bond sued upon was that of the testator of the defendant, and that the same had not been paid. The Court gave judgment for the plaintiff, and thereupon the defendant appealed to this Court. Mr. A. W. Haywood, for the plaintiff. MERRIMON, J., (after stating the facts). We think the evidence of the witness Campbell was competent, and while it was not, perhaps, sufficient of itself to rebut the presumption of the payment of the bond, yet it was properly received in connection with other evidence as tending to rebut it. This witness heard the conversation testified to by him about the time of the date of the entry of the credit of the whiskey, and this fact and the entry taken together, make some evidence to go to the jury to be considered in connection with the other evidence before them. The objection to the competency of the witness Kerr is unfounded. He had no title to or interest in the bond itself; he as counsel for the intestate White, the owner of it, received it for collection, and agreed to receive as compensation for his services, not the bond or one half of it, or an interest in it, but one half of the sum of money he might collect on account of it. He had no property interest in it. Slocomb v. Newby, 1 Murph., 423. The exception to the instruction of the Court to the jury cannot be sustained. The Court simply explained the rule of law as to the application of partial payments of debts, where the creditor has two or more distinct debts against the same debtor, to enable the jury to apply intelligently the evidence in respect to the credit in question entered on the bond. We do not discover any error in the record, and the judgment must be affirmed. No error. Affirmed. DUKE v. BROWN. B. L. DUKE, in behalf of himself, &c., v. PAUL A. BROWN, tax collector, et als. Constitutional Law-Qualified Voters-Municipal Corporations-Municipal Bonds. 1. Only those persons whose names appear on the registration books are qualified voters, within the meaning of Art. 7, $7, of the Constitution. 2. The registration books are prima facie evidence of the number of qualified voters in a town, but they are open for correction on account of deaths, &c., and perhaps for intrinsic disqualifications and errors in admitting persons to register. 3. Where there is an inherent constitutional defect in the statute authorizing the issue of municipal bonds, a purchaser of the bonds takes them with notice of their illegal origin, for purchasers must inquire into the authority by which the bonds are issued, and are held to notice of any defect therein. 4. A majority of the qualified voters, and not merely of those voting, is necessary to enable a municipal corporation to loan its credit or contract a debt. (Riggsbee v. Durham, 94 N. C., 800; Puett v. The Com'rs, 94 N. C., 709: Norment v. Charlotte, 85 N. C., 387; Southerland v. Goldsboro, at this Term; cited and approved. R. R. Co. v. Com'rs, 72 N. C., 486; modified.) MOTION to continue an injunction to the hearing, in a cause pending in the Superior Court of DURHAM County, heard before Clark, Judge, at Chambers, in Raleigh, on April 224, 1886. His Honor refused the motion, and the plaintiff appealed. The facts appear in the opinion. Messrs. Jos. B. Batchelor, R. B. Boone and John Devereux, Jr., for the plaintiffs. Messrs. Wm. W. Fuller, John W. Graham, James S. Manning, John Manning and Thomas Ruffin, for the defendants. DUKE v. BROWN. SMITH, C. J. In the recent case of Riggsbee v. Durham, 94 N. C., 800; it was held, that the enactment by the General Assembly for the maintenance of a graded school in the town of Durham (Acts of 1881, chap. 231), was unauthorized by, and in violation of the Constitution of the State, in its essential and connected provisions, and that the taxes contemplated by it could not be enforced. At the session of 1885, was passed an Act, which authorizes, upon an approving popular vote of a majority of those who may vote, the issue of bonds in the aggregate not exceeding $15,000; and the obtaining a loan upon them by the commissioners of Durham, to be expended "in the purchase and erection of suitable grounds and buildings for the Durham graded or public schools for white children," under the control and direction of the graded school committee, ch. 87, Private Acts of 1885. The election provided for was held, and of the whole number of votes cast, (370), there were given 245 for, and 125 against the proposed loan, while the number of regis tered voters was 607, more than double the number of the favoring voters. The election being, however, in accordance with the statute, the result was declared and reported in writing by the inspectors of election to the board of commissioners of the town, who proceeded to dispose of the bonds, and in order to provide for the payment of interest and a fund to meet the obligations at maturity, on August 4th, 1885, levied a tax of eight cents upon the $100 worth of real and personal property, and (as we suppose, for such is the statutory requirement), thirty cents on each poll. The section (3) imposing this duty, contains a proviso, "that the tax collected from the colored population of the town shall be applied for the benefit of the public schools for colored children, as now provided by law in said town." The present action on behalf of the tax payers, against the defendants, the officer charged with the collection of the DUKE v. BROWN. taxes and engaged in doing so, is to arrest his action, upon the twofold ground, that the purposes and objects of the law, by reason of its race discriminating features, are repugnant to the Constitution, and further that there have not voted a "majority of the qualified voters" of the town giving sanction to the loan, as required by Art. VII, §7, thereof. It is unnecessary to review the discussions found in the case cited, and in Puett v. Commissioners of Gaston, disposed of at the same Term, (94 N. C., 709;) and we are content to pass upon the sufficiency of the last objection, the want of a compliance with the constitutional mandate, which is alike disregarded in the statute and in the action of the commissioners under it. We have at the present Term, in Southerland v. Goldsboro, modifying somewhat the definition given by RODMAN, J., in R. R. Co. v. Commissioners of Caldwell, 72 N. C., 486, to the term "qualified voters" as used in Art. VII, §7, by confining it to those whose competency has been passed on in their admission to registration, as prima facie proof of the number; and of course this list being open to correction for deaths, removals and other causes subsequently occurring, and perhaps for intrinsic disqualifications existing at the time of registration, and error in admitting their names to the list. But it may be suggested, that the defects not known to the innocent purchasers of these public securities, do not enter in to vitiate their obligatory force, when the vote has been officially counted and the result announced. This is true, as held in Norment v. Commissioners of Charlotte, 85 N. C., 387; and when those charged with the conduct of an election, have determined the facts necessary to its efficacy, this being matter in pais, it is to be taken as conclusively settled, as in that case, that "a majority of all the qualified voters of the city" had "voted in favor of a graded school." This is not our case. The commissioners to whom the vote is certified, determine the respective votes for and against the DUKE v. BROWN. issue of the bonds, and the majority thereof in favor of it "as allowed by said Act for the purpose therein set out," and that all the requirements of said Act and of the law have been duly and regularly complied with." They do not certify, nor could they on the returns made, that the constitutional majority of affirmative votes had been cast, and in this feature the case essentially differs from that of Norment v. Commissioners, supra. The election is under the statute, which requires, not a majority of the voters qualified to vote, but only a majority of those who do vote, and this is all that is determined and declared by the board of commissioners, while the command in the fundamental law, as a limitation upon the capacity to contract a debt and levy taxes for its payment, outside of necessary expenses, is disregarded. Now, while it may admit of question whether in the absence of an enabling power conferred, a municipal corporation can borrow money and issue public securities therefor, since the decision in The Mayor v. Ray, 19 Wall., 468, rendered by a bare majority of the Court in the negative, it cannot be doubted that when restrictions are imposed upon its exercise, they must be observed, and parties taking such securities under a statute which ignores the restraint, cannot occupy the position of innocent purchasers. Persons who receive them when issued under an unconstitutional act, are chargeable with a knowledge of their illegal origin, for they must inquire into the authority of those who undertake to put them out. There are conflicting rulings upon the point whether the requirement of a majority of qualified voters to incur a debt is not in effect the same as a majority of those voting, but we do not feel at liberty wholly to ignore a provision and the difference between the terms used, as well as the deliberate conclusion arrived at in the case cited, in ascertaining the meaning of a clause intended to protect citizens |