INDEX. ABORTION On an indictment under the act of 1834, for procuring an abortion, in order to convict it is incumbent on the state to prove that it was not necessary to preserve the life of the mother. Moody v. The State, 110. ACKNOWLEDGMENT. See DEEDS, 2, 3. ADMINISTRATOR. See EXECUTORS AND ADMINISTRATORS. Where a father conveyed real estate to his son at the price of $1,200, and took from the son his note for $200, payable to the father, with interest, and for the remaining $1,000 took from the son a receipt in the following form, viz: "October the 19th, 1859. Received of B. O. [the father] one thousand dollars for the use without interest received by me, D. O." [the son]-Held, that the amount mentioned in the receipt will not be considered an advancement from father to son, but simply a part of the consideration for the conveyance, payable to the father, but in the hands of the son to use without interest until the father sees proper to require its payment. Overholser v. Wright, 157. AGENT. See CODE OF CIVIL PROCEDURE, 8; PRINCIPAL ANd Agent. ALIMONY Where a petition for alimony is dismissed on a final hearing in the common pleas upon the merits, the case is not appealable to the district court, under section 17 of the "act concerning divorce and alimony." Reed v. Reed, 563. ANCESTOR. See DESCENT AND DISTRIBUTION. ANNUITY A written contract, binding the makers "to pay to J. C. $300, so as to secure to her $16.66 annually during life," being an annuity payable to her by one of said makers, with a provision that in case of any default in payment of the annuity, the whole sum of $300 shall be paid, is in the nature of a penal bond, and no more can be recovered upon it than the amount due on the annuity. Cairnes v. Knight, Ex'r, 68. ANTENUPTIAL AGREEMENT Effect of, upon legal settlement of the minor child by a former husband. See Spencer Tp. v. Pleasant Tp. 32. APPEAL 1. Where the docket of a justice of the peace shows a trial, and then proceeds: "Therefore it is considered," etc., without noting any continuance, the date of the judgment will be held to be the same as that of the trial, although the appeal bond recites the judgment as of a later date. Hoagland v. Schnorr, 30. 2. An appeal from an interlocutory order of the common pleas dissolving an injunction allowed by a judge of that court, to the district court, appears to be expressly authorized by section 5 of the "act to relieve the district courts," etc. (S. & C. 1157; sec. 694 of Code.) Per Scott, J. P., F. W. & C. Railway Co. v. Hurd & Fair, 144. 3. Where an appeal was taken from the judgment of a justice of the peace to Appropriation of Private Property-Assignment in Equity. the court of common pleas, without the proper revenue stamp being affixed to the transcript upon which the appeal was based: Held, that on a motion to dismiss the appeal for the want of such stamp, it was error to refuse the appellant permission to stamp the transcript, and show that the stamp was not omitted with intent to evade the revenue law, and, after such refusal, to dismiss the appeal. Harper v. Clark, 190. 4. Where a party entitled to a second trial, without entering his demand therefor upon the journal, takes the cause to the district court by appeal, it is not error in that court, upon dismissing the appeal for want of jurisdiction, to refuse to remand the cause for a second trial. Huber v. Cherry's Ex'rs, 562. 5. Where a petition for alimony is dismissed on a final hearing in the common pleas upon the merits, the case is not appealable to the district court, under section 17 of the "act concerning divorce and alimony." Reed v. Reed, 563. 6. A defendant in an action for trespass to real estate, caused the party under whom he claimed, to be made a defendant, and the latter, by cross-petition, set up his equitable ownership of the land, and asked a decree against the plaintiff for the legal title, and that the action for trespass be enjoined. Held, that the controversy arising on the cross-petition was purely equitable, and from a decree rendered against the plaintiff he could appeal, and that the case was not one for second trial. Massie v. Stradford et al. 596. APPROPRIATION OF PRIVATE PROPERTY. See RIGHT OF WAY. ARRAIGNMENT. See PRACTICE IN CRIMINAL CASES, 2. ASSAULT WITH INTENT, ETC 1. An attempt to carnally know and abuse a female child under ten years of age, with her consent, is not an indictable offense in Ohio. O'Meara v. The State, 515. Ib. 2. An indictment for assault with intent to commit a rape need not allege the age of the female, although she be in fact under the age of ten years. 3. The presumption of the law is, that a female child under the age of ten years is incapable of giving consent to an act of carnal knowledge, or of assault with intent to commit the act; but the presumption may be rebutted by proof that she understood the nature of the act committed or intended. Ib. 4. A preponderance of evidence is sufficient to rebut such presumption; and it is therefore error to charge the jury that the rebutting evidence in such case must show the female's capacity beyond a reasonable doubt. Ib. ASSESSMENT. See DITCHES, 1, 2. ASSETS. See EXECUTORS AND ADMINISTRATORS, 12, 13. ASSIGNMENT IN EQUITY C., being engaged in teaching a public school, sold a specific amount of his wages, earned and unearned, to the township treasurer, P., and received his pay for the same in full and without discount; C. agreeing that P. should retain the same, when earned, out of the school funds in his hands. Afterward, when the amount thus assigned to P. was fully earned, C. obtained from the township clerk an order on the township treasurer, P., for the amount, and then transferred the order to D., who paid for the same a valuable consideration, and had no notice of the former transfer to P. In an action by D. against P., to recover the amount of the order: Held, 1. The transaction between C. and P. constituted a good assignment in equity. 2. On the assignment by C. to D., the latter stood in the shoes of the former, and was estopped by the agreement of C., to claim the amount thereof from P. 3. The equity of P. was prior in time, and therefore better 1 Assignment of Error-Bills of Exchange and Promissory Notes. ASSIGNMENT IN EQUITY-Continued. in right. 4. Even had their equities been equal, P. being in possession of the fund, his equity would prevail. Porter v. Dunlap, 591. ASSIGNMENT OF ERROR. See PRACTICE IN CIVIL CASES, 19. ASSIGNOR AND ASSIGNEE. See MORTGAGE, 4 to 8. ATTACHMENT 1. Where personal property has been seized by the sheriff under writs of attachment, the sheriff and the attaching creditors can not, by virtue of their right under such proceeding, maintain a joint action to recover damages for its subsequent conversion or detention by a stranger. Schaeffer et al. Marienthal, Lehman & Co. 183. 2. An affidavit stating the plaintiff's belief that defendant had absconded with intent to defraud his creditors, without setting forth any facts justifying such belief, does not lay a sufficient ground for issuing a writ of attachment. Dunlevy & Co. v. Schartz, 640. 1. On the trial of a party indicted for bigamy, admissions made by the accused prior to the alleged second marriage, in respect to the alleged former marriage, are competent evidence to go to the jury in support of the aver ment of the former marriage. (Wolverton v. The State, 16 Ohio, 173, followed and approved.) Stanglein v. The State, 453. 2. In an indictment for bigamy, an averment that the former husband or wife had not been "continually or willfully absent for the space of five years together, and unheard from, next before the time of" the last alleged marriage, is not necessary. Such fact, if it exist, is matter of defense to be proved by the accused. Ib. 3. A transcipt of the record or registry of a marriage in a foreign country, however well authenticated the same may otherwise be, is not competent prima facie evidence of the marriage therein declared and recorded, without proof of the laws of such foreign country requiring that such record or registry be made and kept. Ib. BILLIARD TABLE Where a party keeps a billiard table, and permits persons to play upon it, for twenty cents a game, to be paid by the loser of the game, he is guilty of keeping such table for gain, within the meaning of section 8 of the act of March 12, 1831, "for the prevention of gaming" (S. & C. Stat. 665), although such keeper of the table does not permit the players, as between themselves, to bet, and neither they nor other persons do bet on the issue of the game or games, in any other manner than that the loser of the game should pay the twenty cents for the use of the table. Ward v. The State, 32. BILL OF EXCEPTIONS We can not regard the bill of exceptions. No motion for a new trial was BILLS OF EXCHANGE AND PROMISSORY NOTES- Bills of Exchange and Promissory Notes. BILLS OF EXCHANGE AND PROMISSORY NOTES-Continued. knowledge of the character of the paper, agreed with the payee, for a val uable consideration, and without the knowledge or consent of the maker, that the plaintiff would protect and take up the notes, and give the payee time for the payment "beyond the day of their maturity." He also averred that the plaintiff paid and took up said notes shortly after their maturity, though he was not legally charged as indorser by due notice of dishonor or otherwise. Held, that the facts so averred do not constitute a defense to the plaintiff's action against the maker; because-1. The terms of the contract set up as a defense do not import a direct agreement to discharge the makers. 2. The stipulation for an extension of time is void of uncertainty, and could not therefore discharge the maker, even if he be regarded as a surety. 3. The plaintiff might waive the laches of the holder in failing to give him due notice of dishonor; the maker was not prejudiced by such waiver, and so is not thereby discharged. Ward & Co. v. Wick Bros. & Co. et al. 159. 2. When an agent, acting within the scope of his employment, executes to a person having knowledge of such agency and employment, a note in the form "I promise to pay," etc., signing his own name thereto, with the word agent" added, but without in any way designating or naming his principal, the agent is individually liable as the maker of the note, at the suit of the payee. Collins v. Buckeye State Ins. Co. 215. 3. Parol evidence is inadmissible, in such a case, to show that it was not the intention of the agent to make himself so liable. Ib. 4. Where a party, claiming and representing himself to be, under letters patent granted by the United States, invested with the exclusive right to make and sell a certain machine within a given territory, enters into a contract with another party purporting to grant to the latter the exclusive right to manufacture and sell such machine within said territory, in consideration whereof the latter agrees to pay the former a specified patent fee for each machine which he shall manufacture and sell; and after a number of such machines have been manufactured and sold, a promissory note is executed by the latter to the former for the amount of fees accrued: Held, in an action on such note by the payee against the maker, an answer simply averiing, in substance, that certain third parties named claimed that the manufacture and sale of said machine by the maker of the note was an infringement of prior patented rights to them, is no defense to the action, and bad on general demurrer. Davis & Co. v. Gray, 330. 5. Where a party, claiming to be the owner of a patent right for a machine, licenses another to make and sell such machine within a certain territory, and in consideration of such license the latter agrees to pay the former a given sum by way of royalty on each machine by him manufactured and sold; and a large number of machines being manufactured, a part of which are sold and a part remain on hand, the parties enter into a compromise agreement, whereby the licensee executes to the licensor his promissory note for the amount due under the former contract for the machines sold, but largely reducing the royalty payable for the machines remaining on hand, and those to be thereafter made; and this, after the enjoyment of every privilege which the license purports to grant, undisturbed by owners of conflicting patents or otherwise, and after ample time and opportunity for testing the machine: Held, that in an action by the payee against the maker of the note, the latter is estopped to deny a consideration for said note, either on the ground of the inutility of or the want of novelty in said machine. Ib. 6. Where a debtor sold his goods for the purpose of defrauding his creditors, with the knowledge of the vendee, and took his note for the amount remaining unpaid payable at a future day: Held, 1. That a creditor of such debtor might treat the sale as void, and subject the goods to the payment of his claim; or he might compel the fraudulent vendee to account |