ABANDONMENT

Nonuser of easement may or may not work abandonment. Facts constituting an abandonment of easement for roadway given. Tudor Boiler Mfg. Co. v. Greenwald Co. 556

Six months' lease at monthly rental is entire contract and will support but one breach and recovery only. Burckhardt v. Greene.

315

City solictor may commence proceedings in mandamus to compel officer to perform duty enjoined upon him under Sec. 1777 Rev. Stat. and 96 O. L. 65, Sec. 137, Sec. 1536-655 (4 ed.) Rev. Stat., without action of council. State v. Bowers. 326

Mere collector of subscriptions is not a "managing agent" of foreign corporation upon whom process may be served, under Sec. 6480 Rev. Stat. Foote v. Commercial Co. 378

Suit for recovery of money judgment is a legal action, notwithstanding incidental equitable questions. v. Anthony.

Heintz 380

Where sheriff neglects to levy execution, action on official bond lies. "Adequate remedy at law" defined. State v. Chambers.

404

In an action for personal injuries, a minor plaintiff cannot recover for mother's services as nurse, in the absence of special contract between them, or proof of manumission. Neither can such minor recover for wages when not emancipated. Bowe v. Bowe. 409

A railroad corporation may be sued as such after the appointment of a receiver. Monnett v. Railway. 469

An action at law for damages or an action in equity for specific performance are the proper remedies for failure to perform a covenant. Ib.

The legal effect of the dismissal of
an action "without prejudice," is ma-
terially different from a dismissal with-
out qualifications, or with prejudice.
Akron (City) v. Railway.
525
Action to enforce vendor's lien is
barred in six years, when. Callender
v. Basquin.
540
Abandonment and adverse posses-
sion are properly liable to a jury.
Tudor Boiler Mfg. Co. v. Greenwald
Co.
556
Appraisement and award are not
condition of right to action on fire in-
surance policy unless demanded by in-
surer. German Ins. Co. v. Kistner.
569

Sureties signing note upon represen
tation of payee that the entire indebt-
ness of the maker is covered cannot
interpose a defense of additional lia-
bility of the maker growing out of a
prior fraudulent transaction. Harter
v. Pearson.
601

After satisfaction of judgment in as-
sumpsit action for tort will not lie.
Ib.

Notes treated as advancements will
not bear interest after the ancestor's
death.
Ib.

ADVERSE POSSESSION-

Adverse possession by abutter of
land belonging to railroad right of
way must be inconsistent with rail-
road's right and not permissive. Smith
v. Railway.
44

Evidence of common user or mixed
possession of a railroad right of way
between an adverse claimant and the
company is competent evidence to rebut
a claim of adverse possession and to
strengthen the company's title. Ib.

Record of deed for fee to railroad
right of way and entry thereunder are
evidence of adverse claim and contin-
uous; hostile possession for twenty-
one years grants a title by prescription
therein.

Ib.

Plaintiff out of possession who has
or claims an estate, or interest in re-
version or remainder, may maintain
an action to remove a cloud or quiet
title against an adverse claimant. Sec-
tion 5779 Rev. Stat., construed. Mon-
nett v. Railway.
469

Nonuser of easement may or may
not work an abandonment. Facts con-
stituting an abandonment of easement
for roadway given. Tudor Boiler Mfg.
Co. v. Greenwald Co.
556

The owner of a fee in highway has
all the uses incidental to the property
not inconsistent with the dominant es-
tate, and until the exercise of the ease-
ment is asserted, any use of the owner
of the fee is not in itself adverse. Ib.

Adverse possession is shown by the
exercise of dominion over a strip of
land over which another claims a road-
way, treating it as an appurtenant to
adjoining property, erecting permanent
buildings thereon, enclosing part of the
way with a fence and paying no re-
spect to its use as a roadway, for more
than twenty-one years.
Ib.

ALIMONY---

is given, the judgment of the trial
court is final.
Ib.

APPROPRIATION PROCEEDINGS—
See EMINENT DOMAIN.

APPURTENANCE-

See REAL PROPERTY.

ASSESSMENTS-

Evidence as to special benefits from
street improvement is admissible in
suit to enjoin collection of assessments
therefor. Benham v. Cincinnati. 17

Finding of benefits by assessing board
held prima facie correct.

Ib.

Constitutional limitations as to
street assessments may be waived.
Abutters signing petition for street
improvement "irrespective of the num-
ber,*
signing this petition" are
estopped to deny that assessments ex-
ceed benefits. Thornton V. Cincin-
nati.
33

Construction of tile drain not sep-
arate and distinct improvement. Tay-
lor v. Wapakoneta.
285

Life tenant paying assessments not
a volunteer, and is entitled to subroga-
tion against the land. Eddy v. Leath.
645

Failure of a council to fix valuation
of property in advance in making a
sewer assessment is not fatal. If a
just and equitable assessment is made
and other statutory requirements are
complied with. Ayres v. Toledo. 767

No presumption that an assessment
is equitable through failure to record
valuation of property assessed. Ib.

The report of the assessing com-
mittee is not conclusive as to the own-
ers of the property, but an assessment
based upon such report will not be set
aside in the absence of proof that in-
justice or inequality has been done. Ib.

Where the statutory limitation of an
assessment against property is fixed
at 25 per cent of the value of the prop-
erty, which valuation shall not exceed
a fair market value of such property
after the improvement is made, an alle-
gation of defendant, in an action to
collect the assessment, that the assess-
ment against her property exceeded 25
per cent of its general taxable value,
is immaterial and should be stricken
out.
Ib.

City clerk without authority to cer-
tify an appointment under Sec. 2601-1
Rev. Stat. (Rep. 96 O. L. 96), before
the city engineer has proceeded there-
under. Bloch v. Godfrey.
781

Assessment should be apportioned
among all lots under Sec. 2601-1 Rev.

Owner of tract acquiescing in an
irregular apportionment of an assess-
ment is estopped from objecting. Ib.
ASSIGNMENT

Jurisdiction of probate court is not
interferred with by garnisheeing legacy
in hands of administrator. Orlopp v.
Schueller.
127

Common pleas cannot order admin-
istrator to pay money into court in
garnishee proceedings, when.
Ib.
Affidavit in attachment not insuf-
ficient by reason of confiicting dates in
amended petition.
Ib.

The provision of Sec. 5522 Rev.
Stat., as to setting forth nature of
plaintiff's claim in affidavit for at-
tachment, is to determine whether the
claim is of such a character as will
entitle him to an attachment.
Ib.
Undetermined legacy in hands of ad-
ministrator may be garnisheed under
Sec. 5531 Rev. Stat.

Ib.

An attachment may be issued in an
action commenced on a promissory
note when any of the statutory grounds
for attachment exist.
Ib.

Failure to give notice to debtor of as-
signment of chose in action is imma-
terial as against attaching creditor.
Milligan v. Bank.
136

Garnishee is not proper party in
attachment but he may interpose want
of notice of assignment of chose in
action.
Ib.

Payment by garnishee after notice of
assignment of nonnegotiable note is

not a defense pro tanto against as-
signee thereof.

Ib.

Evidence sufficient to sustain attach-
ment. Goodyear T. & R. Co. v. Rubber
Tire Co.

263

A plaintiff in attachment is en-
titled, under Sec. 6496 Rev. Stat., to
obtain service by publication, upon a
showing that summons cannot be served
upon defendant within the county.
Common pleas court is not authorized
by Sec. 6733_Rev. Stat. to discharge
attachment. Foote v. Commercial Co.
37S

Foreign corporations engaged in in-
terestate commerce business, voluntar-
ily complying with Secs. 148c and 148d
Rev. Stat., are entitled to exemption
from attachment under the provisions
of Sec. 6521 Rev. Stat., upon the
ground that they are foreign_corpora-
tions. Armour Car Lines v. Fruit Co.
496
ATTORNEY AND CLIENT—

It is improper for counsel to assume
facts not in evidence in malicious pros-
ecution. Lieblang v. Railway. 30

Executor entitled to reasonable coun-
sel fees not successfully defending will,
notwithstanding judgment was based
on compromise. Union Sav. Bank &
Tr. Co. v. Smith.
317

Order dismissing action at cost of
attorney because commenced by him
without authority is not appealable.
Capaul v. Railway.
578

The question whether or not the
finding of the trial court that an action
was commenced by plaintiff's attorney
of record without authority, was sus-
tained by the evidence, will not be con-
sidered in the absence of a bill of ex-
ceptions setting forth the evidence.
AUDITOR OF COUNTY-

Ib.

County auditor is a public officer
and is responsible to public for neglect
of duty. He is not a mere clerk to
board of county commissioners. Kloeb
v. Mercer Co. (Comrs.).
152

County auditor entitled to be re-
imbursed his costs in bona fide resist-
ing mandamus proceedings to compel
issuance of warrant, notwithstanding
he was mistaken in judgment in re-
fusing to pay same.
Ib.

Auditor should protest against and
object to drawing warrants which he
deems unlawful,
Ib.

County auditor must act faithfully.
prudently and exercise judgment, to a
degree commensurate with his responsi-
bility to the public, in drawing war-
rants on the treasury. Failure to so

By-law denying benefits to a delin-
quent member, who pays arrears after
becoming sick and continues to pay
thereafter during sickness, is unrea-
reasonable. Phoenix Council v. Ben-
nett.
110

A member of a beneficial associa-
ation is conclusively presumed to know
constitution and laws of the order when
the application refers specifically to
same. Irregular acts of agent con-
trary to laws of association not bind-
ing upon latter. Payment of over-
due assessments by a son of delinquent
after fatal injury comes too late.
eral calls for assessments does not
waive an ipso facto suspension of
member. Local agent cannot suspend
constitution of association. Pete v.
Woodmen of the World.
653

BILL OF EXCEPTIONS-

Gen-

that certain evidence submitted to jury
on trial is not made part thereof. Ib.

Question raised by motion to strike
bill of exceptions from files of circuit
court is whether bill is part of record
of court below. Strauck v. Stoneware
Co.
73

Order of trial court making bill of
exceptions part of record is necessary
under Secs. 5302 and 5334 Rev. Stat.
Merely filing, and allowing, settling
and siguing by trial judge is not suf-
ficient.
Ib.

Amendment, 96 O. L. 17, dispensing
with necessity of entry upon court
journal, and providing that signature
by trial judge shall be sufficient evi-
dence of settling and allowance, etc.,
does not dispense with order to make
bill of exceptions part of record. Ib.

Bill of exceptions not containing
all the evidence, certain exhibits not
being attached, held sufficient, the
weight of evidence not being involved.
Union Sav. Bank & Tr. Co. v. Smith.

Cause of action on promissory note
accrues upon death of payee. Tobias
v. Richards.
81

Failure of action on promissory note
for want of title is not failure be-
cause of defect in jurisdiction. Ib.

A written instrument in the form
following is a joint and several prom-
issory note: "I hereby certify to have
received of Mr. Dan. Deiss as a loan
for three months $500. Columbus,
Ohio, August 12, 1872, Oscar Orlopp,
Emillie Orlopp ;" and an action thereon
may be maintained against one of the
makers. Orlopp v. Schueller. 127

Payment by garnishee after notice of
assignment of nonnegotiable note is
not a defense pro tanto against as-
signee thereof. Milligan v. Bank. 136