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Taxation.

34. In

errors.

TAXATION_Continued.

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 0. 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 Ó. L., 82), should all be placed
upon the tax list of the year in which
the correction is made. Ratterman
v. Ingalls.

748
26. Considering art. 2. sec.
28, of the constitution of Ohio, said
sec. 2781, as amended, only grants
power to correct false statements
made after its passage.

Ib.
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was repealed without saving clause,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 hefore
the completion of the new structure.
Gibson v. Zumstein.

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 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.

Ib.
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
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 Commissioners.

V.

516

an

514
Derby v. Commissioners.

515
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 erior is fundamental, not
clerical. · Tatem v. Commissioners.

514
41. Where an assessor in the
discharge of his duties under
2753 erroneously returns 35 build-
ings when there were only 26 and
carries this into his list returned to
the auditor; the commissioners have
no authority to refund the taxes up-
on the non-existent 9 buildings paid
in previous years on account of this

sec.

Telephone and Telegraph Co's—Trusts.

Ib.

or

I.

I.

error because the error is fundamen-
tal. Mitchell
V. Commissioners.

628
42. The commissioners' pow-
er of resunder under sec. 1038, does
not exist in case of a fundamental
error.

Ib.
43. The taxpayer's remedy
was within the limitation of sec. 167,
and sec. 5848 et seq.

44. Under sec. 2690g, Rev.
Stat., the board of tax commission-
ers may exercise a veto power. but
they have no authority to modify,
the power to levy taxes being one of
the legislative functions of the com-
mon council. Ampt v. Cincinnati.

824
45. But under

sec. 2690h,
Rev. Stat., when the common coun-
cil has apportioned or distributed to
the various departments the money
raised by the tax levy, and that has
been sent to the board of tax com-
missioners, they may approve,
amend or reject (increase

de-
crease) any of the funds.

Ib.

.
TELEPHONE AND TELEGRAPH
COS.-

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
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.

72
TRADE MARK-

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

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.

595
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.

Ib.
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
TRIAL

If after the jury has been
Sworn one

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

condemnation
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
court.

Ib.
TRUSTS-

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.
Ib.
7. A trust for a daughter for
life who had a dissipated husband,
remainder to her children, with a
proviso that if she became a widow
the trust should end and the prop-
erty turned over to her absolutely:
Held, that to become a widow means
husbandless, and the daughter hav-
ing procured a divorce is entitled to
have the trust ended. Rittenhouse
v. Hicks

2.

2. In

a

case

I.

I.

2.

Turnpikes-Venue,

secure

TRUSTS-Continued.

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

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 a
conveyance sanctioned or ordered by
such court; and the said title not
having been so divested, the trustees
were necessary parties to the will
case.

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.

759
8. Where a Roman Catholic
church in the state of Ohio, and the
land on which it stands, have been
bought, built and paid for by the
contribution and gifts of the mem-
bers of the congregation worshiping
therein and others, and the title con-

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
chuch, 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 hy the contributions and gifts of
individuals composing said congre-
grations and others. and the title
placed in and held by a competent
trust in rursuance of the rules and
regulaticns of said church, said
churches will be protected and pre-
served for the uses for which they
were acquired as charities. Ib.

10). 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

charitable
trusts, independently of and not de-
rived irom the statute of 43 Eliza-
beth.

Ib.
TURNPIKES-

Facts to be considered by a
jury, in a condemnation suit, in as-
sessing the value of that part of a
turnpike road which is within the
city limits. Avondale v. Turnpike
Co.

82
VENUE-

1. 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.

over

Verdict-Wills.

I.

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as

Ib.

VIRGINIA MILITARY DISTRICT

1. 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 Onio
Štate University. Trustees, etc. v.
Ayer.

125
2. As the statute of limita-
tions does not run against the gov-
crnment 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.

Ib.

WASTE-

A devisee of land, part of
which is valuable timberland, 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 crit
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. Ware
v. Houk.

724
2. It cannot be said, as
matter of law, that the low water line
is the average line to which the wa-
ter has receded in past years,
shown by the waterworks records;
but the jury can consider these rec-
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.
WILLS-

1. A power of appointment
to be exercised by last will cannot be
exercised by deed. Taliaferro v. Y.
M. C. A.

Nor can the grantee of
such a power lawfully exercise the
same for a valuable consideration.

Ib.
3. Where a contest of a will,
prosecuted on the grounds of undue
influence and want of capacity, is
successfully resisted by the execu-
tors, they are entitled to be allowed
their expenses, including counsel
fees. Bower's Account.

39
4. Where a testator bequeath-
ed all his property to his wife to be
at her absolute disposal, during her
lifetime, without restraint, and after
her death "the remainder of the es-
tate unexpended by her" be-

657

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2.

WARRANT-

1. A conviction upon arrest
without warrant the day after the of-
fense, is without jurisdiction except
where such arrest is expressly au-
thorized by statute; hence such con-
viction for selling liquor on Sunday
is void. Munzebrock v. State. 277

2. Section 1804, R. S., per-
mitting warrants for arrest to be is-
sued by the clerk of the police court
is not unconstitutional, for the act is
a ministerial, and not a judicial one.
Moliter v. State.

324

was

answer

Witnesses-Words.

WILLS-Continued.
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 Jistri-
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 thosc 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-

h Where person required

to testify before a board of equaliza-
tion refuses to

pertinent
questions, when the board is investi-
gating whether particular property
has been returned for taxation, he is
liable to be indicted, and after con-
viction, fined or imprisoned, or both,
under sec. 6906, R. S. Heffnei v.
Mahoney.

250
2. Unconscious declarations
of a wife not in the known presence
of a third person are not compelent
to show injury to feelings from a
libel ior which the husband is saing.
Commercial Gazette Co. v. Grooms.

489
WORDS-

1. The word "false" in orig-
inal and amended sec. 2881, rleating
to false returns in taxation, means
not. merely erroneous, but williully

Ratterman v. Ingalls.

2. The word "party" as used
in sec. 5177, R. S., means "side."
Moores & Co. v. Bricklayers' Un-
ion,

665
3. The word "widow" may
mean husbandless by divorca. Rit-
tenhouse v. Hicka

759

SO.

748

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