DESTY ON TAXATION.-The American Law of Taxation, as Determined in the Courts of Last Resort in the United States. In two Volumes. Vol. II. By ROBERT DESTY. St. Paul: West Publishing Co. 1884. This volume completes Mr. Desty's work on Taxation, the first volume of which was published last October. This volume treats of the remedies for erroneous or illegal taxation; the collection of the tax; the lien for taxes and its enforcement; the sale of land for taxes; the rights and remedies of the owner acter sale; the title of the purchaser; actions involving tax titles accounting and settlement; municipal, local and special taxation street assessments; taxation under the police power, and remedies against illegal and void assessments. The work as thus logically carried to completion presents some very pleasing features. In the first place, the book-making part is very well done. The chapters, sections and pages run through the two volumes consecutively, which fact we trust the lawyers and judges will not be slow to observe and act upon when they come to cite the book. Each volume contains its own table of cases, and, in addition, the second volume has an appendix which contains a digest of all the cases decided and reported too late to be incorporated in the body of the work, with references to the chapter and section where the subject-matter properly belongs. This appendix brings the cases down to the 15th of September, 1884. Each volume also contains its own index. We have no doubt of the usefulness of the work; we think it will prove very acceptable to the profession. Error to the Superior No. 319. Rothschild v. Hudson, executor, etc. Court of Cincinnati. Judgment affirmed. No report. 937. Thone v. Beck, treasurer, etc. Error to the District Court of FrankDismissed by plaintiff in error. lin County. MOTION DOCKET. No. 270. The Newburg Petroleum Co. v. Weare et al. Motion for leave to file a petition in error to reverse the judgment of the District Court of Washington County. Motion granted. 331. Harmonning, by next friend etc., v. The P., C. & St. L. Ry. Co. Motion for leave to file a petition in error to the District Court of Preble County. Motion granted. 334. Carver v. Seiberling. Motion for leave to file a petition in error to the District Court of Summit County. Motion granted. 336. Collins v. City of Portsmouth. Motion for leave to file a petition in error to the District Court of Scioto County. Motion overruled on the ground that this court has no jurisdiction to reverse such a judgment of reversal by the district court, under Revised Statutes 6710, as amended in 1883. 337. Mergedant & Co. v. Clarke, administrator. Motion for leave to file a petition in error to the District Court of Hamilton County. Motion granted. 338. P., C. & St. L. Ry. Co. v. Grimes. Motion for leave to file a petition in error to the District Court of Pickaway County. Motion granted. No. 339. Samuel Burgner v. Julius Humphrey et al. Error. Reserved in the District Court of Summit County. DICKMAN, J. 1st. If the owner of land grants a lease, whereby he conveys all the underlying mineral coal, with the right to mine and remove the same, the lessee will not be entitled to remove the whole of the coal, without leaving support sufficient to maintain the surface in its natural state, unless, the language of the instrument clearly imports, that it was the intention of the lessor to part with the right of subjacent support. 23. B. made a contract of lease, and thereby sold and conveyed all the mineral coal in, under, or upon his farm, to H. & C. or their assigns -the lessees to pay ten cents per ton, for each ton of coal mined and removed from the land. It was agreed by and between the parties to the lease, "that no mining operation by the parties of the second part, their heirs or assigns, shall extend to, or be so near the dwelling house or barn now upon said land, as to injure said buildings. Held: 1. That the coal under the buildings was exempt from the mining operations provided for in the lease. 2. That the lessees were not only liable for damage done to the building, by mining and'removing coal from under the same, but, the lessor was entitled to recover the net value at the mine, of all coal so mined and removed, at the time of its removal, irrespective of the price put upon other coal by the terms of the contract; and it was error in the court, to exclude evidence offered by the lessor, to prove the quantity and value of the coal so mined and removed from under the buildings. Judgment of the court of common pleas reversed and cause remanded. MCCAULEY dissents from the second syllabus. Iron National Bank v. W. T. Lodwick, assignee. Errorto the District Court of Scioto County. Per curiam-Upon the findings of fact by the court of.common pleas, we are of the opinion that its conclusions of law are not erroneous. We further decide that these findings of fact are not manifestly against the weight of the evidence. Judgment affirmed. 391. George H. Ely and John A. Toplift v. Isaac N. Topliff. 390. Isaac N. Topliff v. John A. Topliff and George H. Ely. Cases in error reserved in the District Court of Lorain County. BY THE COURT. By writing, Isaac agreed with John and George thus: They to have the exclusive use of his patent for tubular carriage bows, dated Dec. 27, 1870; one-third of the expense of maintaining the right of the patent against infringements and other patents to be paid by Isaac, and twothirds by the others; any improvements made by either to be for the mutual benefit of all; in consideration of "the above grant" John and George to pay to Isaac fifteen per cent, out of the wholesale selling prices as royalty. They were also to make the articles of quality and finist to meet Isaac's approval, and to do all in their power to extend the sales. The prices were to be settled by agreement of the three. In May, 1871, Isaac obtained another patent for an improvement in the articles; and in August, 1875, an improvement on that was patented in the name of John. They made articles according to the patent of 1870, until about February, 1871; but worked without interruption or interference, under that of 1871, from its date, conforming to that of 1875 after its date. They stamped upon all articles made, up to Sept. 1879, the date of the patent of 1870, as well as the dates of the other patents after their issue. They actually enjoyed a monopoly and gained large profits. They paid the royalties that accrued prior to April 1, 1879. On September 13, 1879, they notified Isaac that his patent of 1870 was invalid; that the contract would be no longer recognized by them, and that they would not pay any more royalties. In October, 1879, Isaac applied for a re-issue of the patent of 1870. In December, 1879, it was reissued. In February, 1880, John and George sued to recover the royalties paid. The trial court rendered judgment for Isaac. In June, 1880, Isaac sued John and George for royalties accrued after April 1, 1879. His petition set out the whole contract; averred that the royaltics were earned under the patent of 1870, upon "articles manufactured by the defendants after June 30, 1879." The answer denied the validity of that patent, and averred its re-issue. At the trial John and George did not object to evidence proving the paterts of 1871 and 1875, and that the articles were made under them under said contract. The trial court gave judgment for Isaac for unpaid royalties accrued prior to the notice of September 13, 1879. Held: 1. Both judgments were right. 2. The contract gave royalties upon articles made under the pate its of 1871 and 1875 as well as under that of 1870. 3. Under the contract and conduct of the parties, the invalidity of the patent of 1870, and its reissue, were immaterial as to royalties accrued before the notice of termination of the contract. 4. As they did not object to evidence that the royalties were earned pursuant to said contract under the patents of 1871 and 1875, John and George cannot complain because the trial court treated the case as if the petition had been so amended as to aver such earning. 5. Isaac's action touching the reissue estops him from denying his assent to the termination of the contract. Judgments affirmed. 330. Bates v. Fismer, Administrator, et al. Error to the District Court of Athens County. A majority of the court are of the opinion that the finding of the trial court is not contrary to the evidence, and the judgment is affirmed. Dickman and McCauley, J. J., dissent. No report. 392. Topliff et al. v. Topliff. Error. Reserved in the District Court of Lorain County. Judgment affirmed. No report. 403. McMannus, Administrator etc. v. Boutwell et al. Error to the District Court of Hancock County. Judgment of the District Court reversed and that of the Common Pleas affirmed. No report. 448. Cosler v. Hardman et al. Error to the District Court of Greene County. Judgment affirmed. Burke v. Jackson, 22 Ohio St., 268 followed. No report. 456. U.S. Home and Dower Association v. Reams. Error to the District Court of Hamilton County. Judgment affirmed. No report. 510. Martin v. Powers. Error to the District Court of Fulton County. Judgment affirmed. No report. 516. Royce v. The State. Error to the District Court of Scioto County. Settled and dismissed at costs of plaintiff in error. 519. James et al. v. Magee. Error to the District Court of Ottawa County. Dismissed for want of preparation. 520. James et al. v. Valequette. Error to the District Court of Ottawa Couuty. Dismissed for want of preparation. 528. Ashland County Mut. F. Ins. Co. v. Casner. Error to the District Court of Ashland County. Dismissed for want of preparation. Error to the District Court of 529. Tarrin et al. v. Broughton et al. Hamilton County. Judgment affirmed. No report. No report. 532. Welch v. McClelland. Error to the District Court of Harrison Error to the District Court of Knox DIGEST OF CASES. Attachment-Bond or Note. A bond, promissory note or other instrument for the payment of money can be attached only by taking the same into the sheriff's actual custody. Leaving a certified copy of the warrant with the usual notice upon a person having in his custody a bond belonging to the defendant in attachment is ineffectual to attach such bond. A delivery of the bond claimed to be attached does not relate back to the time of the service of the warrant so as to vest title in the sheriff from that date. Neither the obliger in the bond nor the sheriff can set up the fraudulent character of the transfer of such bond to an assignee in an action thereon Thurber v. Blank (50 N. Y., 80; and Castle v. Lewis (78 N. Y.; 127), followed and approved. Anthony v. Wood (29 Hun., 239), reversed. Anthony, v. Wood, N. Y. App. N. Y. Daily Register. Bank-Delay in holding Check drawn upon it and sent for Collection— Presumption of Acceptance.-A bank has no right to hold a check indefinitely which has been drawn upon it and received for collection. Although a bank is not bound by a legal obligation to the holder to pay or accept a check drawn by a depositor whose account is at the time good for the amount, yet, if it does not pay or accept, it is bound to refuse, and to give notice thereof at once, either on the same, or, at farthest, on the next day. The fact of acceptance by a bank of a check received for collection is to be inferred from the circumstances given in evidence, and, where there is evidence justifying such inference, the question of acceptance is for the jury. A bank received a check for collection on the sixth of March, with these instructions: "Do not hold collections; return promptly if not paid." The bank held the check until the tenth of March, when it was protested in consequence of instructions received the day before from the drawer not to pay it. During the whole time the drawer's account was more than sufficient to pay the check, but the bank did not have sufficient money in hand with which to pay. Held, That these circumstances were evidence for the jury of the fact of acceptance, and that the holder of the check was entitled to recover from the bank the amount of the check with interest. Semble, That if a bank were to receive a check for collection and hold it more than one day without taking action upon it, the check holder could recover from the bank, even though the drawer was not in funds. The First Nat. Bank of Northumberland v. McMichael. Sup. Ct. Pa. Phila. Leg. Int., Nov. 7, 1884. Contract to Exchange Property—Breach—Measure of Damages.—A parol contract having been made for the sale or exchange of real estate, it was repudiated by the defendant, who refused to make a conveyance. Held, That the measure of damages is not only the expense to which plaintiff was put on account of the contract before it was finally repudiated by defendant, but also the value of the property of which plaintiff deprived himself by conveyance to defendant upon the faith of defendant's promise. Zimmerman v. Galbraith. Sup. Ct. Pa. Phila. Leg. Int.. Nov. 7, 1884. |