WILEY V. LOGAN. stead of Sylvester Mitchell, not indicating otherwise that the same person is meant. Again, when the plaintiff was examined as a witness upon the inquiry before the referee, and was asked about the solvency of "the claim on Sylvester Mitchell," at the time when it was placed in the defendant's hands, the question is objected to because the claim "was not mentioned specially in the complaint," and no other reason assigned for its exclusion. When Sylvester Mitchell was under examination by plaintiff, he stated, though objection was made, that his financial standing in 1858 and 1859 was good; upon his cross-examination by defendant, that he did not know of any such outstanding indebtedness of his own, nor does he recollect that the defendant held such claims, nor whether he paid anything to him; and on his re-direct examination, he does not deny his liability on the notes set out in the defendant's receipt. The defendant, a witness in his own behalf, was asked on cross-examination about the debts of Mitchell, and, after a similar objection that they were not mentioned in the complaint, which was overruled, testified to his want of recollection of such notes or their amount, adding, "I did a great deal of business for Wiley, and at some time may have had notes against Sylvester Mitchell." Recalled, the plaintiff testified, after the same form of objection, that he did, he thinks in 1858, put three notes in defendant's hands, to collect against Sylvester Mitchell, in the respective sums of $85, $100 and $40, for none of which he had accounted. These references to the testimony are not made to it for any other purpose than to show that the indebtedness of Mitchell, alleged in the complaint in a general way, authorized the inquiry into the defendant's responsibility in regard to them which was made, and to show that the responsibility WILEY V. LOGAN. was resisted upon the ground, untenable as it was, that they are not specified in the complaint, and upon none other. They were consequently within the sphere of the order of reference, and were properly taken cognizance of, passed on, and the result reported by the referee, though miscalled by him in his report, as the debts of Weaver, instead of Mitchell. The referee finds all the elements to exist on which the agent's responsibility depends: the delivery; the solvency of the debtor; and that by proper exertion the debts could have been collected, while it does not appear that they were produced, or the failure to produce them in any manner explained; and he exonerates the defendant in this action because no demand therefor was made. Now, as all the facts which the parties chose to bring before the referee, do warrant an inference of the defendant's liability, of which the absence of a previous demand is held by the referee to relieve him, and as, in our opinion, the reason given was wholly insufficient, no alternative was left but to declare the defendant's legal accountability, and to sustain the plaintiff's exception thereto. The referee's mistake in the name of the debtor, and such the record seems to show when the subject has been fully inquired into, ought not to be allowed to defeat the plaintiff's right in this regard. If any defence to the claim existed, it should have been brought forward before the referee, and the case not hazarded upon the technical want of a demand. The report, corrected as to the commissions, must be confirmed, and judgment entered accordingly. No error. Affirmed. MCDOWELL v. THE CONSTRUCTION Co. JOHN L. MCDOWELL v. THE MASSACHUSETTS AND SOUTHERN CONSTRUCTION COMPANY et als. Qualified Voters-Election-Registration. 1. The ruling heretofore made in Southerland v. Goldsboro, ante, 49, and Duke v. Brown, ante, 127, in regard to the meaning of the term "qualified voters," as used in Art. 7, §7, of the Constitution, affirmed. 2. Before an election is held, opportunity must be given to all persons entitled to become qualified voters to register, and if this opportunity is denied, either purposely or by accident, it may vitiate the election, and will certainly do so, if such denial should materially affect the result. 3. When the County Commissioners ascertain and declare the result of an election, their action and declaration cannot be attacked collaterally, but it may be by a direct proceeding for that purpose. 4. Where it is sought to directly attack and have declared void the action of the Commissioners in declaring the result of an election, the action need not be brought until some action is proposed to be taken under the alleged election. 5. So, where an election was held in 1883, for the purpose of obtaining authority to issue bonds in aid of a railroad corporation, which the Commissioners declared to have been ratified by a majority of the qualified voters, but it was not attempted to issue the bonds until 1886; It was held, that an action brought to attack the finding of the Commissioners when they attempted to issue the bonds, was not barred. 6. In an action brought to have an election to ratify the issue of bonds to a railroad corporation declared void, and to restrain the issuing of the bonds, it was made prima facie at least, to appear, that the election was not called in accordance with law; that no notice of the election was given; that no opportunity was given for registration to such persons as had become qualified since the last election; that as a matter of fact, a majority of the qualified voters did not vote for the measure, and that there were various other grave irregularities: It was held, that an injunction until the hearing should be granted, to restrain all action under and in pursuance of the election. MCDOWELL v. THE CONSTRUCTION CO. 7. Where in such case, it was made to appear, that since the appeal was taken, the bonds had been delivered; It was held, that it was immaterial. (Norment v. Charlotte, 85 N. C., 387; Southerland v. Goldsboro, ante, 49; Duke v. Brown, ante, 127; Perry v. Whitaker, 71 N. C., 475; Van Bokkelan v. Canaday, 73 N. C., 198; Heilig v. Stokes, 63 N. C., 612; Coates v. Wilkes, 92 N. C., 376; Harrison v. Bray, 92 N. C., 488; Turner v. Cuthrell, 94 N. C., 239; Blackwell v. McElwee, 94 N. C., 425; cited and approved. Smallwood v. Newberne, 90 N. C., 36; Simpson v. The Commissioners, 84 N. C., 158; Cain v. The Commissioners, 86 N. C., 8; cited and distinguished. Reiger v. The Commissioners, 70 N. C., 319; commented on). MOTION to continue an injunction to the hearing, in an action pending in the Superior Court of RUTHERFORD County, heard before Avery, Judge, at Chambers, in Newton, on June 1, 1886. The defendant, the "Rutherford Railway Construction Company," is a corporation organized under and in pursuance of the statute, (Acts 1883, chap. 141). The sections of that statute necessary to an understanding of the opinion of the Court, provide as follows: "SEC. 2. That the capital stock of said company may be created by subscription on the part of individuals, municipal or other corporations, in shares of fifty dollars each, which may be in lands, timber, work or money, as may be stipulated. "SEC. 10. That upon the written request of one fifth of the qualified voters of the county of Rutherford, the Board of Commissioners of said county shall cause an election to be held at the several precincts of said county, for the purpose of submitting to the qualified voters thereof, the question whether the subscription of fifty thousand dollars voted by said county, on the seventh day of August, one thousand eight hundred and eighty-one, to the Rutherford and Spartanburg Railroad, may or may not be transferred and subscribed to the capital stock of 'The Rutherford Railway Con MCDOWELL v. THE CONSTRUCTION Co. struction Company,' and also at the same time, the question of subscribing an additional fifty thousand dollars to the capital stock of said 'Rutherford Railway Construction Company.' "SEC. 11. That if a majority of the qualified voters of Rutherford county, at said election, shall vote for 'transfer,' then the railroad agents for said county, appointed by the commissioners to control the subscription voted to the Rutherford and Spartanburg Railroad, the seventh day of August, one thousand eight hundred and eighty-one, shall be authorized to subscribe said fifty thousand dollars to the capital stock of the 'Rutherford Railway Construction Company,' and shall pay said subscription to said company in such manner as said agents shall believe to be best to promote and advance the construction and completion of said railroad. "SEC. 12. And if a majority of the qualified voters of said county, at said election as aforesaid, shall vote for 'subscription,' then the said agents aforesaid, shall be authorized to subscribe the additional fifty thousand dollars thus voted for to the capital stock of said 'Rutherford Railway Construction Company,' in like manner as provided in section eleven of this act." Section thirteen of this statute provides, that the county commissioners may issue bonds of the county named, in the way prescribed, to pay for the capital stock so to be, and when subscribed; and section fourteen provides, that the proper county authorities shall levy a county tax, adequate to pay the interest that may accrue upon the bonds so to be issued, and the principal thereof when the same shall become due. The plaintiff alleges in his complaint, in substance, that the defendants, the county commissioners of the county of Rutherford, professed, in pursuance of the above statutory provisions, to cause an election to be held in that county, as therein prescribed and allowed, on the 2d day of August, |