Hamilton County. the students to take the examination at Columbus, lest by refusing they will be deprived of every opportunity to be examined and to obtain certificates. It would be a clear abuse of the discretion vested in the board to indirectly nullify the statute and deprive the students of Cincinnati and vicinity of the privilege conferred. The motion to quash the alternative writ will be overruled, and unless the defendants wish to plead, a peremptory writ may issue as prayed for. Smith and Swing, JJ., concur. EXECUTIONS-JUDGMENTS-LIENS. [Hamilton (1st) Circuit Court, June 26, 1909.] Giffen, Smith and Swing, JJ. HUMPHREYS V. SCHLENK ET AL. JUDGMENT CREDITOR FAILING TO LEVY EXECUTION RETAINS LIEN BUT LOSES PRIORITY AS TO OTHER LIENS IN FORCE. A judgment creditor, not having levied his execution for more than a year as required by R. S. 5415 (Gen. Code 11708), while retaining his lien, loses his priority as to a subsequent judgment upon which execution was levied within such year. ERROR to common pleas court. Morrison R. Waite, for plaintiff in error. SWING, J. This is a question as to priority of liens. Schlenk's judgment is prior in time and is a lien on the lands in controversy, but not having been levied on the lands of the debtor within one year from the time of the rendition of the judgment under the provisions of R. S. 5415 (Gen. Code 11708, 11709), it lost its priority to the judgment of Humphrey's, which was rendered subsequent and which was levied on the lands in question. Earnfit v. Winans, 3 Ohio 135, 136; Corwin v. Benham, 2 Ohio St. 36; Bish v. Burns, 4 Circ. Dec. 598 (7 R. 285). Giffen and Smith, JJ., concur. Eight Hour Tobacco Co. v. Koellner. MASTER AND SERVANT. [Hamilton (1st) Circuit Court, March 12, 1910.] Giffen, Smith and Swing, JJ. *EIGHT HOUR TOBACCO Co. v. GEORGE KOELLNER. 1. FAILURE TO GUARD STATIONARY ENGINE DOES NOT MAKE A MASTER LIABLE IF NOT THE PROXIMATE CAUSE OF THE INJURY. Failure to enclose a stationary engine in a factory with a guard rail as provided by Gen. Code 1027, does not make the master liable for an injury to the seller of a steam pump, assisting the master's own employes in carrying it by the engine in operation, since it appears that an ordinary guard rail would not have prevented the accident. 2. INSTRUCTION ERRONEOUSLY REFUSED. The testimony having tended to prove that one assisting a master's employes on carrying a heavy weight, accidentally, and through no fault of theirs, tripped over the corner of an engine platform while walking backwards past it, an instruction raising the theory that the tripping rather than failure to guard the engine was the proximate cause of the injury was improperly refused. 3. RESPONDEAT SUPERIOR. One, not an employe, assisting employes in carrying by an unguarded revolving engine a heavy piece of machinery sold by him to the master, being injured by the negligence of the engineer causing him to fall against such engine, would recover under the doctrine of respondeat superior and not for failure to maintain guard rails about the engine. GIFFEN, P. J. The plaintiff in the original action, George Koellner, sold and delivered to the defendant, the Eight Hour Tobacco Co., a steam pump weighing about 400 lbs., and while assisting the employes of the defendant in carrying the pump through a narrow passageway, on one side of which was a revolving engine, suffered a fracture of his right arm by a stroke from the crank of the engine. The jury returned with a general verdict for the plaintiff the following interrogatory and answer: "What act or acts, if any, on the part of the defendant, was the immediate cause of the plaintiff's injury? In per*Reversed, no op., Koellner v. Tobacco Co. 84 O. S. 496. $ Hamilton County. mitting an engine to operate at the time the pump was being carried in a narrow passageway without said engine being guarded." Although the passageway was only two and one-half feet wide with a coalbin on one side and an engine operating on the other, the pump was bulky and heavy and three men were assisting plaintiff in the work, it does not appear that the work could not be performed with reasonable security provided each and all of the workmen exercised ordinary care. Had the engine itself been surrounded by an ordinary guard rail, it would have afforded plaintiff's arm no protection, unless placed at such height as would prevent his arm from extending over or under it and from coming in contact with the engine. It is averred in the petition, and the evidence tends to prove, that the engineer, one of the three employes of the defendant, negligently caused said pump to be moved so as to force plaintiff over and upon the revolving wheel of the engine. If this be so, then the negligent act of the engineer was the proximate cause of the injury and the unguarded engine only a condition; but in that event the defendant would be liable as he was not a fellow servant and the doctrine of respondeat superior applies. McIntire St. Ry. v. Bolton, 43 Ohio St. 224 11 N. E. Rep. 333; 54 Am. Rep. 803]; Cleveland, T. & V. Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821; 52 L. R. A. 142]. On the other hand there is testimony tending to prove that the plaintiff accidentally tripped on the corner of the engine platform while walking backward and carrying the pump; and without any fault of the other workmen. This theory of the case was presented by special instruction No. 5 requested by the defendant but refused by the court. We think this was error, because under such circumstances the unguarded revolving engine was not the proximate cause of the injury; but the efficient and direct cause was the accidental tripping of the plaintiff. The defendant objects to the charge of the court upon contributory negligence, because not in issue; but it offered testimony tending to prove such negligence and it was received with Eight Hour Tobacco Co. v. Koellner. out objection, hence it can not consistently complain of an appropriate instruction for the consideration and application of such evidence by the jury. Special instruction No. 1 given by request of defendant, although most favorable to it, should not have been given, because it excludes all consideration of the negligence of the employes assisting in the work. The judgment will be reversed for error in refusing special instruction No. 5 requested by defendant, and the cause remanded for a new trial. Smith and Swing, JJ., concur. CRIMINAL LAW-INTOXICATING LIQUORS. [Wood (6th) Circuit Court, May 11, 1911.] Wildman, Kinkade and Richards, JJ. GEORGE ROGERS ET AL. V. STATE OF OHIO. 1. STATE MAY IMPEACH REPUTATION OF PHYSICIAN ISSUING PRESCRIPTION FOR INTOXICATING LIQUORS. Evidence by the state impeaching the reputation of a physician issuing prescriptions for intoxicating liquors is admissible in a prosecution for keeping a place contrary to law as showing their source, acceptance and filling in good faith by the seller and filing in good faith by the purchaser; otherwise proof of sales upon prescription might raise the presumption that sales were made in good faith. 2. STIPULATION IN CRIMINAL PROSECUTION TO TRY SEVERAL DEFENDANTS CHARGED WITH COMMISSION OF SEVERAL OFFENSES AT ONCE HELD VALID. A stipulation by counsel in a prosecution for several offenses against several defendants, for unlawful sales of intoxicating liquors, admitting all the testimony in one trial concerning all the offenses charged but providing that "only such evidence as may be pertinent against the defendant shall be considered in each case, and evidence relevant to the other defendants shall not be regarded," is entirely proper and clearly within the province of counsel to make, and a several and separate conviction of each of the persons accused upon the several charges will Wood County. be deemed on review to rest upon the evidence adduced and properly applied to each particular case. 3. PRESUMPTION OF REGULARITY AND CORRECTNESS OF JUDGMENT. In reviewing court, every presumption obtains in favor of the correctness and regularity of the judgment of the trial court. 4. PLEA IN ABATEMENT OVERRULED. A plea in abatement, setting up matter which should only be offered in support of a plea of not guilty is properly overruled. [Syllabus approved by the court.] ERROR to common pleas court. Benjamin F. James, for plaintiffs in error: Cited and commented upon by the following authorities: State v. Simmons, 49 Ohio St. 305 [31 N. E. Rep. 34]; State v. Wing, 66 Ohio St. 415 [64 N. E. Rep. 514]; State v. Thatcher, 12 Dec. 718; Cantwell v. State, 18 Ohio St. 477; Doyle v. State, 17 Ohio 225; Williams v. State, 12 Ohio St. 622; Goodin v. State, 16 Ohio St. 345; 14 Cyc. 298; 2 Tidd, Practice 1109; Bean v. Ayers, 70 Me. 421; Cook Carriage Co. v. Johnson, 23 Bull. 374; Cincinnati St. Ry. v. Wright, 54 Ohio St. 181 [43 N. E. Rep. 688; 32 L. R. A. 340]; Estabrook v. Gebhart, 32 Ohio St. 415; 3 Cyc. 50, 52, 57, 73; Tanner v. Brown, 5 Dec. Re. 112 (2 Am. L. Rec. 614); Driver v. Driver, 153 Ind. 88 [54 N. E. Rep. 389]; Ross v. Railway, 141 Mo. 390 [38 S. W. Rep. 926; 42 S. W. Rep. 957]; Bank of Kingfisher v. Smith, 2 Okl. 6 [35 Pac. Rep. 955]; Pollard v. Rutter, 35 Ill. App. 370; Myers v. Phillips, 68 Ill. 269; Heinsen v. Lamb, 117 Ill. 549 [7 N. E. Rep. 75]; Shepard v. Hull, 42 Me. 577; True v. Plumley, 36 Me. 466; Crane v. Judge of Wayne Circuit, 24 Mich. 513; Sedam v. Meeksback, 3 Circ. Dec. 424 (6 R. 219); Reed v. Miller, 4 Ky. (1 Bibb) 142; Anthony v. Travis, 148 Mass. 53 [19 N. E. Rep. 8]; Burlington, K. & S. W. Ry. v. Grimes, 38 Kan. 241 [16 Pac. Rep. 472]; Barnhart v. Clark, 59 Tex. 552; Witbeck v. Waine, 8 How. Pr. (N. Y.) 433; Rew v. Barker, 2 Cow. 408 (N. Y.) 515 [14 Am. Dec. 515]; Hodges v. Lassiter, 94 N. C. 294; Peebles v. Braswell, 107 N. C. 68 [12 S. E. Rep. 44]; State v. Powers, 69 Minn. 429 [72 N. W. Rep. 705]; Riverside Rub |