The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1895-11-13

Digest of the Opinions Handed Down
During the Past Week.

Harnett county. Opinion by
Avery, j.
The bondsmen of defendant, who
has consented to a judgment against
himself and his sureties, in claim and
Delivery, are not entitled after Judg-
ment to an order making them party
defendants and vacating the Judg-
ment; nor for an injunction. Such
Judgment can be set aside only by civil
action; not by motion in the cause.
2. 1t is no ground of complaint on
the part of the sureties that defendant
consented to the Judgment before the
maturity of the debt sued upon, such
agreement not being necessarily
fraudulent. And even were there
fraud or collision, the proper remedy
is new civil action.
No error. Affirmed.
State (appellant) VS.. William Yeargan,
from Wake county. Opinion by
Faircloth, C. j.
l. Between the ages OF 7 and IA, an
infant is presumed to be innocent
and incapable of committing crime,
but that presumption may be rebutted
by showing that he can discern be-
tween good and evil. In such cases as
aggravated battery, use of a deadly
weapon, attempt to rape and the like,
malice and wickedness supply the
want of age and public justice demands
that the majesty of the law should be
indicated.
2. But upon an Indictment for sim
pie misdemeanor gambling by
shooting craps'0, where the jury
found in special verdict that the de-
PENDANT knew right from wrong, but
did not know that he was violating
the law, and that he was between the
ages of 10 and IA years; Held that it
was not error for the court to hold
that the defendant was not guilty.
No error.
B. V. McCless ct al VS.. j. c. Meekins
ct al (appellants) from Tyrrell
county. Opinion by Montgomery
/. Where, in an action to restrain
sheriff from paying into the general
county treasury a special tax fund,
which the plaintiff alleges was collect
Cd for his own benefit it was objected
that the complaint was defective in
substance in that it did not show that
the county orders, for which the
bonds were issued, were given for nee
essary expenses or by the sanction of
majority vote of the qualified voters,
and that therefore the orders were
void; Held, that as the complaint al
lsges that the orders were valid and
overdue, the pleading is sufficient, the
presumption being that the Commits
sioners acted in good faith and within
the scope of their authority.
2. The County Commissioners not
only have the power, without the sane
tion OF the popular vote, to contract
debt for its necessary expenses, but
also the right to acknowledge the debt
by the issuance of an order on the
treasurer of the county for its pay
nent, and to substitute bonds of the
county for the orders which it has pre-
viousiy issued for the same debt.
3. Where an Act of the General As
sembly gave to the County Commits
sioners the power to issue, without
the sanction of a popular vote, bonds
fer any and all Indebtedness of the
county, whether for necessary ex-
penses or not: Held, that such Act is
yeid only in the part in conflict with
the Constitution, Art. VII, Sec. 7.
4. The Act of 1895, CHI 278, is un-
constitutional as seeking TO impair the
obligation of contract.
No error in granting the restraining
order.
NC. School for the Deaf and Dumb VS..
n. c. Institute for Deaf, Dumb and
Blind. Goth sides appeal.) Opin-
ion by Montgomery, j.
The defendant institution at Raj
eigh was created by the Act of 44-45,
Oh. 81, for the purpose of educating
and maintaining the poor and desti-
tate deaf mutes and blind persons Of
this State
The plaintiff corporation of Morgan
ton is school for white deaf and
dumb children of this State, chartered
by the Act of 1891, Oh. 399. Section S
of said Act provides that when said
school shall be completed, the white
deaf and dumb pupils, who might then
be in the institution at Raleigh should
ss removed to Morganton and placed
in the school there.
In 1861, one John Kelly bequeathed
10 the defendants board of directors
and their successors $4,000, the inter
est thereon to be used for the educa-
ting "poor mutes."
The plaintiffs brings this action to
have themselves declared the trustees
Of thecorpus of this fund and compel
the defendants board OF directors to
pay it over to them.
he IunU cOUSlsLS OF S4,UUU III SJdUc
bends and library; Held,
/. The statement of the above facts
in the complaint in this action is not
sufficient to have the courts revoke the
trust and place it in the hands of the
plaintiffs.
2. The library and the interest of the
fund should be divided pro rata be-
tween the white and colored deaf
Iautes of the State under the care and
training of all the institutions now
established or to be hereafter estab-
lished by the State, such apportion-
Inent to be based upon the official re-
ports Of said institutions as to attend
ance The interest should be dis.
tributed annually and the division OF
the books made at once.
Affirmed and modified. Avery, j.,
concurring.
State v James Griffis (appellant) from
Wake county. Opinion by Avery, j.
Where, in criminal action before
=