Volume 7 — Ohio Nisi Prius Reports, New Series

<p>STATUTORY REGULATIONS AS TO FERTILIZERS.</p> <p>Constitutional Law — Invalidity of the Act Relating to Fertilizers— State Board of Agriculture a 'Private Corporation — Its Secretary can not be Invested loith Palioe Power — Injunction Lies against Publication of a Libel, When — Action by a Private Individual or Corporation does not Lie against a State Officer — Pleading—Combining Several Acts into One Cause of Action — Misjoinder of Parties bining Several Acts into One Cause of Action — Misjoinder of Parties — Sections 4446a, 44460, 4446c,’ 4446$, 4446e, 4446/, 4446a, 44467i, 4446i, and Section 312.</p> <p>1. The State Board of Agriculture of Ohio is not a public corporation, or state agency, or department of the state government, but is essentially a private corporation; and the secretary of this board is not a public officer, but the agent of a private corporation.</p> <p>2. The General Assembly is without authority to delegate police power to a private corporation or a private citizen, and the provision in the act of May 1, 1881, 78 O. L., 55 (Section 4446a et seq, Revised Statutes), clothing the secretary of the State Board of Agriculture with authority to exercise police power at his discretion, is an attempt to confer upon him one of the sovereign functions of government, and renders the 'act unconstitutional and void.</p> <p>3. The fact that in an action for an injunction one of the grounds of complaint is that the defendants, acting under the provisions of an unconstitutional statute, are about to publish a libel, does not deprive a court of equity of jurisdiction in that behalf.</p> <p>4. An action to enjoin proceedings under Section 4446a et seq, will not lie as to the Auditor of State or the Supervisor of Public Printing, but will be granted as to the Slate Board of Agriculture and the printing company which is doing the work complained of.</p>

<p>LICENSE REVOKED OF PHYSICIAN PRACTICING UNDER. TWO NAMES.</p> <p>Physician — Revocation of Incense of — Authority of State Board of Examiners — Not Clothed with Administrative Functions — Gross Immorality not an Indefinite Term — Section 1¡1¡Q$c.</p> <p>,1. The expression “gross immorality” has acquired through long use a standard of interpretation and understanding that prevents its being longer subject to the charge of being indefinite, and the' provisions of the act establishing a state board of medical examiners which authorizes the board to revoke a certificate for gross immorality is, therefore, not void for want of definiteness, or because the question of what constitutes gross immorality is left to the caprice of individual members of the board.</p> <p>2. A physician who maintains two different offices under two different names and under circumstances which indicate an intention to perpetuate a fraud upon the public in his professional character is guilty of gross immorality within the meaning of the act in question, and an injunction against the revocation of his license will not lie.</p>

<p>CONCEALMENT BY A DEBTOR. OF HIS WHEREABOUTS.</p> <p>Debtor and Creditoi — Burden of Showing Concealment by the Debtor— Statute of Limitations not Tolled, Unless — Section J/989.</p> <p>Mere ignorance of the whereabouts of a debtor who is not absent from the state does not toll the statute of limitations as applied to an action on an account, but the burden is on the creditor to show affirmative acts on the part of the debtor which prevented a discovery of his whereabouts.</p>

<p>IMPLIED RESERVATION OF EASEMENT.</p> <p>Easements — Implied Reservation of — Brick Walk Leading to Side- Entrance not a Necessity — Question of Necessity Determinable from Circumstances.</p> <p>1. An implied reservation of an easement by a grantor in lands granted to another, which is beneficial to the grantor and injurious to his grantee and could well have been guarded against by specific reservation, must be founded, under the rule of construction that a grantor can not derogate from his own grant, upon a real and reasonable necessity determinable by the court from the facts and circumstances of each case.</p> <p>2. In a closely built city where houses are commonly placed side by side with adjoining walls, a side entrance to a residence having the full width thereof open on the street in front and an alley in the rear, is simply an additional convenience, not amounting to” such a necessity as will imply a reservation of an easement in a brick walk leading to such entrance on an adjoining lot conveyed by grantor without any reservation in his deed of such right to .the grantee.</p>

<p>ABATEMENT AND REVIVAL OF JUDGMENT.</p> <p>Judgments and Decrees — Grounds for Vacation we Cumulative — Effect of Consent to Vacation and Retrial After Term of Cause Once Reduced to Judgment — Facts Constituting Consent to Vacation — Determination of Validity of Defense — Laches and Estoppel.</p> <p>1. The provisions of Section 5354, Revised Statutes, with reference to the vacation or modification of judgments after term, are cumulative merely and not exclusive.</p> <p>2. Consent by counsel to the opening up of a judgment is a waiver of a formal finding by the court that the defense about to be offered is a valid one within the meaning of Sections 5359 and 5360.</p> <p>3. After consent by counsel for the payee to the vacation of a judgment on promissory notes, a request to charge the jury not to undertake to determine the validity Of the notes comes too late when all the evidence has been heard, and the right to question the action of the court in vacating the judgment is lost by laches.</p> <p>4. Courts may, after term, redocket and retry a cause once tried and reduced to judgment, if the parties so request and the subject-matter is within the province of the court to decide; and neither party may withdraw his consent after the new trial has been entered upon.</p> <p>5. It is sufficient to determine the validity of a defense as a matter of law from the statement pleaded, and the existence of an actual, defense to the judgment sought to be vacated need not be established before the order of vacation is granted.</p> <p>6. The successive steps in proceedings to vacate a judgment after term, under Sections 5354, 5359 and 5360, are: (1) an application filed in the original case, stating the ground of the vacation and the defense, upon which summons shall issue, and no further pleading is required; (2) hearing on the application; (3) if ground for vacation is found to exist and a valid defense is averred in the application, the judgment should be vacated, but the lien of the original judgment saved by suspending the order of vacation pending trial on the merits; (4) a pleading setting up the defense, and a trial upon the issues then made as if no judgment had.been rendered; (5) the rendering of a judgment which shall either restore the old judgment or extinguish it, as the facts found on the trial demand.</p>

<p>effect of release of one joint tort feasor..</p> <p>Joint Tort Feasors — Are Not Joint Debtors, Unless — Construction of Sections 8162 and 8166■ — Negligence—Words and Phrases.</p> <p>Joint tort feasors are not joint debtors, within the meaning of Section 3166, until the claim has been reduced to judgment or otherwise liquidated by the parties; and it follows that the release of one joint tort feasor operates as a discharge of all others jointly liable for the same tort.</p>

<p>PROSECUTION OF SALOON KEEPER.S UNDER. THE SUNDAY CLOSING LAW.</p> <p>Sunday Closing and Sunday Selling — First Offense and Second Offense —Section 4864-20 Construed — Criminal I>aw.</p> <p>Inasmuch as the unlawful sale of intoxicating liquors on Sunday, and unlawfully allowing a place where intoxicating liquors are sold to remain open on Sunday, are merely different forms of committing, the same legal offense, the unlawful sale of intoxicating liquors on- Sunday can be charged as a second offense, when the first conviction relied upon was for unlawfully allowing a saloon to remain open on Sunday. ■ '</p>

<p>SELECTION OF NEWSPAPER. FOR ADVERTISING SHERIFF’S SALE.</p> <p>Judicial Sales — Right of Sheriff to Select Newspaper for Advertising Sale — Master Commissioner — Appointment of, to Convey Prop- ' erty can only he Made, When — Sections 5309, 5393 and l/SlO-l.</p> <p>1. The appointment of a special master commissioner for the sale of specific property, together with the special reason or reasons why the sale should not be made by the sheriff of the county, should be embodied in and made part of the judgment, order, or decree ordering the sale.</p> <p>2. The refusal, by the sheriff, of a request of the judgment creditor to insert the notice of sale in a particular newspaper is not a ground for the appointment of a special master commissioner to make the sale.</p> <p>3. The statute makes it the duty of the sheriff to give public notice of the time and place of sale in a newspaper; and he may select any paper he pleases, subject only to the statutory requirement that the paper so selected be one printed and of general circulation in the county.</p>