The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-05-22

ror in admitting evidence to prove
such fact was therefore harmless. The
failure to correctly spell the name OF
the sendee did not relieve the de-
PENDANT company of it's duty to at
tempt to deliver the message.
Eernhardt, appellant V. {. n. & w. IL
r. From Caldwell Affirmed.
Money voluntarily paid with the
| knowledge of all the facts, cannot be
| recovered back, although there is no
| debt. Commissioners v Commission
ers, IS n. G. $40; Commissioners V.
Setter, 20 N. G. 426. Nor if thus paid
can it be recovered back, though paid
in satisfaction of an unjust demand or
one that had no validity. Brummitt
| V. Mcclure, 107 N. G. 351.
Marks V. Cotton Mills, appellant. From
Durham. New trial.
1t is culpable negligence, not a
mere error of judgment, which makes
an employer liable.
An employer is not required to
guarantee the safety of his employees
or to furnish an absolutely safe place
for them to work. In providing the
place to work he is required simply
| 10 use reasonable care and prudence.
| He is not bound to furnish the best
known machinery but only such as is
reasonably fit and safe and is in gen.
| eral use.
In an action by an employee TO re-
| cover damages alleged to have been
| sustained by the negligent failure of
| the defendant to have certain cog
| wheels boxed, it was error to permit
| q witness to testify that the wheels
| should have been boxed and that he
| had seen machinery of the same kind
| in one mill with the cog wheel boxed
| the witness not attempting to show
| that such was the general custom.
| Summerlin V. Railroad, 1873 n. G. $50;
| Cogdell V. Railroad, 100 n. G. 3l3; $.
| G. 1872 n. G. $50; Burwell V. Sneed,
| 104 n. G. lis.
Wilson ct al, appellants V. Green. From
| Wake. No error.
| Injunction relief cannot be invoked
| when there is q sufficient remedy at
| law.
| Where there is a provision by law
| for correcting errors and abuse of
| power by tax assessors, the courts will
| not lend their equitable relief to cor
| rect such error or abuse of power
| until it appears that the legal remedy
| has been exhausted.
| The Machinery Act OF 1903 (Chap-
| ter 251) providing for a Board OF
| List-Takers and Assessors, and &
| Board of Equalization in each county
! 20 examine the returns of the list-tak-
| erS, upon complaint, from day to day,
| with authority to correct the same,
| and Il Board of State Tax Commission
| erS, with power of general supervision,
| is sufficiently comprehensive to afford
| ample protection to the taxpayer
| against excessive valuation, discrimi-
| nation and abuse of power; and the
| courts will not entertain an action to
| enjoin the levy OF Il tax upon the
ground Of an invalid assessment until
it appears that the complainant has
fully awaited himself of the remedy af-
| forded by said Act
| A condition precedent to an action
| to restrain the collection of a tax
based upon an alleged invalid assess
| ment, is the tender or payment of the
| amount of tax which the complainant
| maintains to be justly due.
The legality of the formation Of q
| board of assessors must be tested by
| IL direct proceeding.
The court say that while the plain
tiffs' relief must be denied "They have
made serious charges against those in
trusted with the administration of this
| important branch of the law. 1t is
| true that the charges are denied, but
| it yet remains to be said that the law
| should be so justly administered as to
| avoid even the appearance Of wrong.
| The State has no right to require Of
| the taxpayer any more than his Just
/
| ing tribunal should see that he is pro-
| tected against wrongful exaction.
City of Winston, appellant v. Sceson
| ct al. Affirmed.
| The trading stamp" business s not
within the meaning of gift enter
| prise"
| A municipal corporation can levy
only such taxes as are authorized by
| it's charter, or, il unauthorized by its
| charter, such as are otherwise author
| lied by law.
Section $500 of The Code provides
| that a city may levy taxes for munich
| pal purposes on all persons privileges
and subjects within the corporate
| limits, which are liable to taxation for
State and county purposes Sections
| 81 and &c OF chapter 247, Acts 1903.
| impose a license tax of twenty dollars
| on any gift enterprise or any person
| offering any article for sale and pro-
posing to present the purchaser with
a gift as an inducement to buy, and 4
| county tax of fifty dollars upon the
| business of issuing or selling trading
| stamps. The charter of the city Of
Winston provides that it shall have
power to impose a license tax of ten
dollars on any business conducted
within it's limits not enumerated in it's
charter, but the trading stamp bust
ness is not menlIOlled III ire ClidIIc
among the subjects of taxation.
Held, that the trading stamp bust
ness not being a gift enterprise, and
such business not being enumerated in
the charter, an ordinance imposing
tax of fifty dollars on the trading
| stamp business is not authorized by
the charter of the city of Winston.
Wcstbrooks V. Wilson, appellant. From
Rutherford. Affirmed.
Issue dcvisavit vel non. The cavea-
| tors showed that the testator was 80
| years old and by reason of dissipation
and old age his mental powers were SO
much impaired as to inca7acitate him
| from making a will, and that he was
a victim Of fraud and uDdue influence
exerted over him by the propOunder
with whom he had lived for some time
| in Illicit Observation-Disclosures being
| born. The propounder denied that the
| testator was incapable of executing
viii.
The charge of the judge was that
| the burden was on the caVeators to
establish the fraud and undue inliu-
| ence, and in passing upon this qucs-
| ton the jury should consider the rela-
4 tiOD of the alleged teSt2tor IN tho do