levy of a tax for the same, it does not necessarily make such levy addi- tional to that authorized by sec. 1006, R. S. Ib. 23. The provisions of acts of March 21, 1888, and March 30, 1888 (85 O. L., 419, 491), requiring the levy authorized by each to be made in June, 1888, are directory. Ib.
24. The delay to make such levies until September, 1888, does not invalidate them. Ib.
25. Taxes assessed for back years, under sec. 2781, as amended (83 O. L., 82), should all be placed upon the tax list of the year in which the correction is made. Ratterman v. Ingalls.
26. Considering art. 28, of the constitution of Ohio, said sec. 2781, as amended, only grants power to correct false statements made after its passage.
27. And as original sec. 2781 was repealed without saving clause, false statements made prior to the repeal (April 14, 1886), can not now be corrected. Ib. 28. The word "false" in orig- inal and amended sec. 2881, R. S., means not merely erroneous, but willfully so. Ib.
29. But where the auditor discovers his mistake of law after the statement is made, and prior to expiration of that tax year notifies the taxpayers thereof, and the latter fails to correct his statement volun- tarily, the auditor may do so under said sec. 2781 as amended. Ib.
30. The power of the auditor to add for an additional structure not returned by the assessor is not barred by the board of equalization having acted on the property before the completion of the new structure. Gibson v. Zumstein. 516
31.. The act of April 14, 1886, amending the act of May 11, 1878, so far as it increases or adds the penalty for omissions to list property for taxation before 1886, is retroac- tive, and is therefore unconstitu- tional. Treasurer, etc. v. Walker. 558
32. Inventory of an estate sworn to and filed by the executor in the probate court is competent evidence before the auditor for pur- pose of correcting tax returns for the estate made by the executor and placing omissions therein on tax duplicate.
33. Under sec. 5851, R. S., the requirement is sufficiently complied with if only so much of the tax im-
posed as plaintiff concedes as a mat- ter both of fact and law to be due, is tendered or paid. Adams Ex. Co. v. Ratterman. 469
34. In actions under secs. 5848 and 5850, to recover back taxes illegally collected, the action is founded on the illegality of the col- lector, and the fact that the taxes were voluntarily paid is a defense the burden of proving which is on the officer making the collection. Ib. 35. A tender of the amount plaintiff concedes to be due in law and fact satisfies sec. 5851, and he does not lose his right to deny the validity or constitutionality of part of a tax by being mistaken as to the legality of the part not tendered. Ib.
36. A new structure put on the duplicate at a greater value than the assessor's return, caused by the mistake in reading the return, is a clerical error and subject to refunder. Tenhunfeld v. Commissioners. 513
37. The commissioners should allow the refunder, and cannot re- fuse it on the ground that they think the valuation grossly inadequate, for they have no power to review the ac- tion of other officers in fixing valu- ations, but can only correct clerical Ib.
38. A refunder of taxes, based upon error in assessment, not being founded upon a clerical error, the commissioners cannot allow the claim. Harte V. Commissioners. Derby v. Commissioners.
39. Neither the county com- missioners nor auditor have any power to refund excessive taxes for back years, caused by the assessor having, in valuing a new building, failed to deduct for the destruction of an old building, where the error is not clerical. Chatfield v. Commis- sioners. 511
40. When the auditor of state orders a reduction in valuation for gross inequality after the legal settle- ment of the duplicate, the county commissioners have no power to or- der a refunder for the previous year, for the error is fundamental, not clerical. Tatem v. Commissioners.
TELEPHONE AND TELEGRAPH COS.-
1. It can not be said that the right of a street railway to occupy a street for travel is a superior right to that of using it for telephone poles. Telegraph Assn. v. Inclined Plane Ry. Co. 713 2. A telephone company's grant of the right to use a street is as well founded as that of a street railway. Ib.
3. If a board of trade in an- other state be a corporation exercis- ing such public functions that a dis- crimination by it in refusing market reports to a telegraph company which permits tickers in brokers' of- fices would be enjoined, yet the tele- graph company is not responsible for the acts of the sender of messages and such discriminations can not be prevented by enjoining it from re- moving the ticker and discontinuing such messages. Cain v. W. U. Tele- graph Co.
TRADE MARK-
I. A trade mark intended to deceive the public as to the origin of the article in the packages upon which it is placed, will not be pro- tected against imitation by a court of equity. Wilson v. Needermann. 226
2. A small metallic frame containing a portrait fastened to a pin, so as to be used as a personal ornament, does not constitute a valid trademark when so attached to and
sold with a cigar, as to be readily de- tached and used separately in the manner indicated. Hoeb v. Bishop.
3. An article having a dis- tinct commercial value of its own, cannot be made a trade mark for an- other article by being attached to and sold with it. Ib.
4. An imitation of an invalid trade mark may be enjoined if adopt- ed to deceive by palming off goods as plaintiff's make.
5. "Benedictine" is a valid trade mark for a liquor invented by and made after a recipe of the Bene- dictine monks, although used by an assignee of the original proprietor whose name is employed in the la- bels, without disclosing the change of proprietorship, and although such assignee is a French alien who has not deposited a copy of the trade- mark in Paris. Societe, etc. V. Micalovitch. 95
I. If after the jury has been party calls additional counsel into the case a new trial will not, on that account, be granted to the other party, unless prejudice is shown, for, although it is too late to challenge jurymen it is not too late to ascertain if cause for chal- lenge exists. Israel v. Railroad. 219
2. In a condemnation case the review by the jury is part of the evidence, and a reviewing court can- not set aside the verdict as against the weight of evidence when the rec- ord discloses only the testimony of witnesses. Ib.
3. This scope of the "view" is not unconstitutional as an abridg- ment of the right to a jury on the ground that twelve men are not a jury except when presided over by a
I. A trustee, holding bonds for benefit of others, cannot maintain an action of deceit to recover dam- ages suffered by his cestuis que trustent by reason of a deception, practiced upon them in connection with their purchase of the bonds. Raymond v. Railroad Co. 416
2. A trustee having converted funds of the cestui afterwards took out a policy of life insurance and in- dorsed upon it an assignment to the cestui, and placed in an envelope in his safe with a note to his executor, stating that he had assigned the pol- icy to the cestui to pay off the obli
gation so incurred, and the policy and note were found in the safe after the death of the trustee: Held, that the circumstances constituted a valid assignment of the policy to the cestui to secure payment of the obligation from the trustee. Hewitt v. Life Insurance Co.. 53
3. Land conveyed to a bishop for a nominal consideration, for the use and benefit of a particular con- gregation who are in possession, cannot be mortgaged by such bishop to secure his individual debt. O'Donnell v. Holden. 475
4. Failure of probate court to grant permission to testamentary trustees to execute a trust, with or without bond, as authorized by sec. 5981, was not a jurisdictional defect, in a case brought against such trus- tees, and others, to contest the valid- ity of the will, which created the trust, appointed the trustees, and ex- cused them from giving bond. Mar- tin v. Falconer. 771 5. The said trustees having accepted the trust, the title to the trust fund could only be divested from them by the appointment of an- other trustee, or other trustees, made by the probate court pursuant to the terms of the will, or of the statutes, or by a decree rendered by a court of competent jurisdiction, or by conveyance sanctioned or ordered by such court; and the said title not having been so divested, the trustees were necessary parties to the will Ib. 6. In this action, brought by administrators of defendant's estate for instruction touching the distri- bution of the money in their hands belonging to the estate, the verdict of the jury in the will case is con- clusive against both the trust and trustees. Ib.
veyed to the bishop of the diocese, his heirs, and assigns, in fee simple in compliance with the rules and regulations of the church, the bishop holds said property in trust for the uses for which it was required, and the same can not be sold on execu- tion for the payment of the individ- ual debts of the said bishop, nor does it pass by a general assignment for the benefit of his creditors to his assignee. Mannix v. Purcell. 817 9. The several congregations worshiping in the Roman Catholic churches in this state, according to the course and discipline of said church, are not capable of taking the legal title to said churches as gran- tees, nor becoming the cestui que trust of a private trust; but where the said churches have been acquir- ed by the contributions and gifts of individuals composing said congre- grations and others. and the title placed in and held by a competent trust in pursuance of the rules and said regulations of church, said churches will be protected and pre- served for the uses for which they were acquired as charities. Ib.
A charity in a legal sense includes not only gifts for the bene- fit of the poor, but endowments for the advancement of learning or in- stitutions for the encouragement of science and art, without any partic- ular reference to the poor. Ib.
11. The courts of this state have jurisdiction over charitable trusts, independently of and not de- rived from the statute of 43 Eliza- beth.
I. The accused alone and not the state can have a right to change of venue. as he has a constitutional right to be tried where the crime was committed. State v. Arrison. 379
2. A plea to the jurisdiction in a criminal case because the venue was not legally changed is too late if the jury has been impaneled. State v. Myers. 397
3. The state has an equal right with defendant to a change of venuc, when there is no restriction of the right to defendant by the law providing for such change. Jb.
VIRGINIA MILITARY DISTRICT
I. As Virginia military state land warrants were not subject to lo- cation in the Virginia military dis- trict, which was open only to Vir- ginia warrants on continental line, entries and surveys on the former warrants were void, and land so en- tered passed to Ohio as unsurveyed, by the congressional grant to this state, and belong therefore to the grantee of this state, viz., the Ohio State University. Trustees, etc. v. Ayer.
2. As the statute of limita- tions does not run against the gov- ernment the possession of a locator for ninety-two years is no defense against the university. Ib.
3. A tax title of the state is invalid, for the state had no right to tax lands of the United States. Ib. 4. The locator had only a presumption right, and this right ceased in 1852.
Ib. 5. The title of the university is not dependent upon its first sur- veying and platting these lands, (70 O. L., 109) for these are not condi- tions precedent.
1. A devisee of land, part of which is valuable timber land, and which was bequeathed to H. R. and the heirs of her body, cannot be en- joined by her daughter from cutting more timber than is needed to re pair. Hall v. Rohr. 690 2. The old doctrine of waste is not in force in Ohio, and the de- visee as the first donee in tail can cut and sell. Ib. WATER AND WATERCOURSE-
1. In an action by the owner of land fronting on the Ohio river, for value of sand taken by defendant from a sand bar in the river, plaintiff claiming to own to low water mark, and defendant that the bar was below low water mark, it is a question for the jury to decide, where the low water line at that point is. v. Houk.
2. It cannot be said, as a matter of law, that the low water line is the average line to which the wa- ter has receded in past years, as shown by the waterworks records; but the jury can consider these rec- Ib. ords in deciding.
3. Where plaintiffs' harbor was injured by change in the current and flow of the streams caused by placing a breakwater in the stream to protect a bridge authorized by congress: Held, that the loss sus- tained by plaintiffs, was a remote or consequential damage arising from from the exercise of the paramount right of congress to regulate naviga- tion, and was therefore damnum ab- sque injuria. Harbor Co. v. Bridge Co. 657
queathed to a number of persons mentioned, and the wife was named as executrix, and other persons were named to act as executors after her death, and requested to make distri- bution of the property "according to the terms of the will without any un- necessary delay." Held, that the wife took the personal property for life, subject to a trust for the benefit of those in remainder. Allen v. In- surance Co. 204
5. The existence of such trust is further shown by the statements contained in the will that the be- quests in remainder had been made after consultation with the wife, with her full concurrence, and "recogniz- ing her right to dispose of one-half of the estate." Ib.
6. Such trustee could not, by power of attorney, delegate to an- other the discretion to sell securities, and change investments, with which she was vested by the terms of the will. Ib. WITNESSES-
1. Where a person required
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