Construction of Statutes-Contracts.
CONSTRUCTION OF STATUTES-Continued.
for unloading materials in the construction of docks, is not
within the purview of Section 8950 (3365-27b, Revised Statutes)
and Section 8952 (3365-27d, Revised Statutes) of the General
Code, which require cars to be equipped with automatic couplers,
etc. The use of such machine in shifting loaded cars for con-
venience of employes engaged in unloading same, does not bring
the machine within the provisions of said sections. See Railway
Co. v. Benson, 215.
The requirement of Section 11564, General Code, that the party
excepting at a trial must reduce his exceptions to writing and
file them, are mandatory-But the provisions of the following
sections defining duties of the clerk and trial judge are directory
merely-A bill of exceptions reduced to writing and filed within
the time limited becomes a part of the record if signed by the
trial judge and filed in accordance with Section 11572, General
Code. See Pace v. Volk, 413.
Where a person is on trial for manslaughter, by running an
automobile in a business portion of a municipality at an excessive
rate of speed (Section 12604, General Code), it is not competent
to prove such fact by an ordinance of the municipality defining
the business portions thereof. (Section 12608, General Code.)
See State v. Born, 430.
1. Sale of specific goods-Passing of title presumed without de-
livery-Between the parties to a sale of specific goods, especially
where the price has been paid, a presumption arises that the
title has passed, without a delivery of the goods. Piano Co.
v. Piano Co., 196.
2. Presumption does not arise against creditors-Or innocent
purchaser from vendor-Such a presumption does not arise as
against creditors or innocent purchasers from the vendor; but
as to such third parties there must be not only a formal delivery
to the vendee claiming the goods, but there must be an actual
and visible change of possession. Ib.
3. Transaction not completed in four months-Contract may be
rescinded-Where a commercial transaction, which should ordi-
narily be completed promptly, is not completed within four
months and neither party has done anything within that time
to complete the same, either party may treat the contract as
rescinded. Ib.
Written contracts of conditional sale of personal property situate
in Ohio, although made in another state, must be made in
accordance with Section 4155-2, Revised Statutes, in order to
preserve title in the vendor as against subsequent purchasers, etc.
See Boyer v. Knowlton Co., 104.
An agreement of marriage in praesenti, followed by cohabitation
as husband and wife, etc., establishes a valid common law
marriage. See Umbenhower v. Labus, 238.
Where a passenger on a railroad car has purchased a proper ticket
for transportation over three lines to destination, but has, with-
out his knowledge, received from the agent of the intermediate
line, owing to the latter's carelessness in making an exchange
required by the terms of the original ticket, a ticket with the
wrong destination written therein or in the coupon attached, or
both, etc., and such passenger is ejected by the conductor from
the train, he is entitled to recover damages. See Railway Co. v.
Amos, 300.
The state cannot revoke a grant of lands made upon a valuable
consideration which it retains-Land granted to a city upon a
valuable consideration for street purposes, etc., will not revert
in case it is used for street and railroad purposes, in the absence
of an express stipulation to that effect. See Railroad Co. v.
State, 251.
COUNCIL OF MUNICIPAL CORPORATION—
Section 3673 of the General Code, cannot be interpreted to
authorize a municipal council to impose a license fee upon
merchants who do not sell upon public streets, etc., but only
solicit orders at the residences of customers. See Tea Co. v.
Tippecanoe, 120.
It is no defense to an indictment for obtaining money by false
pretenses that the transaction in which the money was obtained
was unlawful, e. g., for the sale of counterfeit money.
Horton v. State, 13.
A locomotive crane built upon car trucks, equipped with an engine
to move the machine on railroad tracks and used by a railway
Couplers-Court Procedure.
for unloading materials in the construction of docks, is not
within the purview of Section 8950 (3365-27b, Revised Statutes)
and Section 8952 (3365-27d, Revised Statutes) of the General
Code, which require cars to be equipped with automatic couplers,
etc. The use of such machine in shifting loaded cars for con-
venience of employes engaged in unloading same, does not bring
the machine within the provisions of said sections. See Railway
Co. v. Benson, 215.
In an action for partition when the commissioners report that the
estate cannot be divided without manifest injury to the value
of the estate and the common pleas court approves the return,
if no party elects, before an order for sale is made, to take the
estate or any part thereof at its appraised value, under the
statutes no party can so elect after such order has been made,
without notice to or consent of the other co-tenants. See
Darling v. Darling, 27.
The signing of a bill of exceptions taken in the common pleas
court, when omitted to be done by oversight, within the time
prescribed by statute, may be done by the judge in a proper
case nunc pro tunc-Where counsel for the excepting party has
perfected a bill of exceptions, and the judge, within proper time
has corrected and allowed the same, but through inadvertence,
has failed to sign, etc., upon proceedings in error, the reviewing
court may be asked for authority to obtain the signature nunc
pro tunc-It is error for reviewing court not to consider such
bill when perfected by the signature of such judge-Failure of
counsel to notice absence of signature does not affect right of
client to ask for correction, when. See Traction Co. v. Ruth-
man, 62.
Where a summons in error is returned without service, and no
service is made for sixty days thereafter, or for four months
after the entry of the final order complained of, the proceeding
in error may be dismissed. See Hixon v. Vail, 325.
Where, in an action in the common pleas court for settlement of
mutual accounts, it appears by the pleadings that the parties
agreed to an account stated, alleged to have been induced by
mistakes, and the parties are unable to agree because of such
mistakes, etc., an appeal will lie to the circuit court. See Bank
v. Jahn, 406.
Court Procedure-Creditors.
COURT PROCEDURE-Continued.
Where a husband by fraud, obtains a decree of divorce and a
decree barring the wife of dower, alimony, etc., the divorce is
conclusive; but, if the court lacked jurisdiction of the wife's
person, she may have the decree opened so far as it relates to
her interest in his property and defend. See Bay v. Bay, 417.
It is error for a court to take judicial notice of the fact that a
county had voted dry under provisions of Rose law, when.
See Geisse v. State, 457.
A locomotive crane built upon car trucks, equipped with an engine
to move the machine on railroad tracks and used by a railway
for unloading materials in the construction of docks, is not
within the purview of Section 8950 (3365-27b, Revised Statutes)
and Section 8952 (3365-27d, Revised Statutes) of the General
Code, which require cars to be equipped with automatic couplers,
etc. The use of such machine in shifting loaded cars for con-
venience of employes engaged in unloading same, does not bring
the machine within the provisions of said sections. See Railway
Co. v. Benson, 215.
Written contracts of conditional sale of personal property situate
in Ohio, although made in another state, must be made as pro-
vided by Section 4155-2, Revised Statutes, in order to preserve
title in the vendor, as against subsequent bona fide mortgagees,
etc.-One who obtains a lien by chattel mortgage on such prop-
erty and files the same, but fails to renew the same as required
by statute, may take possession when the terms of the instrument
permit, before creditors acquire a lien, and thereby acquire a
prior claim. See Boyer v. Knowlton Co., 104.
Under Section 6113, Revised Statutes, a suit upon the claim of a
creditor against an administrator, due at death of decedent,
cannot be commenced two years from the giving of bond by the
administrator, due notice of his appointment having been given,
although such suit is commenced within six months after the
rejection of the claim and it was presented to the administrator
within two years from the time of giving of his bond. See
Harris v. O'Connell, 136.
There must be a formal delivery, etc., of chattels between parties
to a sale of specific goods, before title is presumed to pass to
vendee as against innocent purchasers and creditors of the
vendor. See Piano Co. v. Piano Co., 196.
An indictment under Section 3821-85, Revised Statutes, which
charges the officer of a bank with embezzling certificates of stock
of such bank, etc., does not charge an offense, such certificates
not being moneys, funds or credits of such bank, within the
meaning of said statute. See State v. Davis, 43.
An indictment for obtaining money by false pretenses must set
forth the false pretenses with certainty, and allege that the same
were false and made with intent to defraud-It is no defense
to such an indictment that the transaction in which the money
was obtained was unlawful. See Horton v. State, 13.
An indictment under Section 3821-85, Revised Statutes, which
charges the officer of a bank with embezzling certificates of stock
of such bank, on which only sixty per cent. had been paid and
which had been pledged to such bank as security for moneys
received by him, does not charge an offense. See State v.
Davis, 43.
The common law rule that neither the husband nor the wife can
be prosecuted for larceny of the other's goods, is not abrogated
by Sections 7995 to 8004, General Code, defining their rights, nor
by Section 12447, defining larceny. See State v. Phillips, 317.
Where a person is on trial for manslaughter, by running an
automobile in a business portion of a municipality at an excessive
rate of speed (Section 12604, General Code), it is not competent
to prove such fact by an ordinance of the municipality defining
the business portions thereof. (Section 12608, General Code.)
A city may not maintain a fence, etc., around park strips in streets,
dangerous to any traveler who undertakes to pass over the same,
and if a pedestrian is injured by reason of such barriers the
municipality is liable, when. See Barnesville v. Ward, 1.
Where a passenger on a railroad car has purchased a proper ticket
for transportation over three lines to destination, but has, with-
out his knowledge, received from the agent of the intermediate
line, owing to the latter's carelessness in making an exchange
required by the terms of the original ticket, a ticket with the
wrong destination written therein or in the coupon attached, or
both, etc., and such passenger is ejected by the conductor from
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