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 Transaction not completed in four months-Contract may be rescinded-Where a commercial transaction, which should ordi- narily be completed promptly, is not completed within four months and neither party has done anything within that time to complete the same, either party may treat the contract as rescinded.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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