and for value, but levied under the statute upon the stock, before the holder of the certificate of stock so pledged had had the pledge registered on the stock book.

mission of the crime and another crime of | ment creditors, who secured their judgment larceny from him of $20 by the imaginary after the stock had been pledged in good faith Joe Feury, he (the defendant) had spent the remainder of the night all around the streets of the town, around the railroad station and around the post office in a vain search for said Joe Feury. The police officer had testified that he and about 50 other men had diligently searched the town, not for Joe Feury, but for the defendant, but without avail. They could not find him. The question objected to and assigned as error was strictly in rebuttal of this testimony of the defendant and was properly admitted.

The eleventh assignment of error is the denial of the defendant's motion for new trial upon the grounds embraced on the first four assignments of error, to the effect that the verdict is not supported by the evidence and is contrary to the evidence and to the law. We have carefully considered the evidence in the case as contained in the record, and, without a rehearsal of it here, we have no hesitancy in saying that it abundantly sustains and justifies the verdict returned, and makes out every legal ingredient of a most atrocious crime.

Finding no error in the record, the judgment of the court below in said cause is hereby affirmed at the cost of Dade county; the defendant having been adjudged to be

insolvent.

SHACKLEFORD, C. J., and COCKRELL, HOCKER, and WHITFIELD, JJ., concur.

H. E. PLOOF MACHINERY CO. et al. v.
FOURTH NAT. BANK OF
FLORIDA et al.

(Supreme Court of Florida. Jan. 27, 1914.)

(Syllabus by the Court.)

JUDGMENT (§ 785*)-LIEN-PRIORITIES.

Under the Statutes of Florida, the lien of a levy upon the shares of stock in a corporation is not superior to a bona fide pledge of the stock by delivery of the certificate to the pledgee

before the judgment was obtained.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1358-1362; Dec. Dig. § 785.*]

Appeal from Circuit Court, Duval County; George Couper Gibbs, Judge.

Suit between H. E. Ploof Machinery Company and another and the Fourth National Bank of Florida and others. From the decree the parties first mentioned appeal. Reversed with directions.

J. C. Cooper & Son and E. J. L'Engle and P. L. Gaskins, all of Jacksonville, for appellants. Kay & Doggett and Marks, Marks & Holt, all of Jacksonville, for appellees.

In the view we take of the case, it is not necessary to determine whether the alleged delay by the sheriff in making proper entry or return upon the writs in his hand avoided the levy.

Our statute, after declaring that stock in any Florida corporation shall be subject to levy, and providing the forms under which the levy shall be made, further declares that from the time of the levy "all the shares owned by the said debtor in such corporation, no matter how the description of it may be thereafter ascertained, shall be bound thereby, and no transfer of the same not then entered upon the transfer book of the said corporation shall be valid and effectual as against the levy of the said process. And if any person shall antedate or procure to be antedated any entry upon the books of said corporation for the purpose of avoiding the effect of the said levy he shall be guilty of a misdemeanor, and shall, upon conviction, be fined not less than one hundred dollars or imprisoned in the county jail not less than ten days." Section 1647, Gen. Stats.

of 1906.

Section 1648 provides the method of the sheriff's sale, and that his bill of sale “shall vest in the purchaser all the titles of the judgment debtor; and upon the presentation of such bill of sale to the secretary or other officer controlling the transfer books of such corporation, it shall be his duty to transfer the said stock from the judgment debtor to the purchaser."

We have no statute opening the stock book of a corporation to the public, or to prospective purchasers or pledgees of stock that privilege being accorded only to a stockholder (section 2658, Gen. Stats. of 1906), and further leaves it to the corporation to prescribe in its by-laws how its stock shall be transferable, provided previous assessments thereon shall have been paid. For the purpose of taxation only, the officers of a corporation are required to make annual return to the State Comptroller of the names and residence of the stockholders.

Section 1647 quoted above makes actual ownership by the judgment debtor at the time of the levy the test, and not the apparent ownership as disclosed by the stock book, and, as the statute may subject one man's property to another's debt, there should be reasonable certainty from the language used that such was the legislative intent. See Dillon v. Mizell Live Stock Co., 63 South. 824, COCKRELL, J. This is an appeal from a decided last term. The statute clearly definal decree adjudging the respective priori-nounces an attempt, by a fraudulent change ties as between the pledgee of stock of judg- upon the books, to make it appear that a

Error, Cent. Dig. §§ 2910, 2915; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 694.*1

3. MASTER AND SERVANT (§ 230*)—INJURIES

TO SERVANT-CONTRIBUTORY NEGLIGENCE.

A boy over 15 years of age, engaged to fan, was guilty of contributory negligence, as a clean a room in which there was a revolving matter of law, in placing his hand so near it as to be drawn in, where he was of average intelligence and understood the danger and that the fan created a strong suction. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 687-700; Dec. Dig. § 230.*]

transfer subsequently in point of time to the the Supreme Court has not before it all of the evidential matters before the trial court. levy had been made prior to the levy. It is true the statute says that "no transfer of the same not then entered upon the transfer book of the said corporation shall be valid and effective as against the levy of the said process." The transfer of what? Not such stock as shall stand in the name of the judgment debtor, but the transfer of stock then owned by him. Unlike our registry laws affecting real property, declaring that certain conveyances shall be ineffectual as to creditors or subsequent purchasers for value and without notice, unless recorded in the public records, the statute now under consideration is not confined to the innocent judgment creditor, and properly so if our construction be correct that the statute looks only to future change of ownership, and is not intended to cover an accidental omission to have an entry made on a private record, in charge of a private individual, over whom the party requiring the entry has but a precarious control.

If the Legislature intends such results, let it speak in less ambiguous language.

Little light can be gained from an attempt to count the number of cases in other jurisdictions, construing their respective statutes. Those who care to pursue the subject may find an extensive discussion and examination of the cases in 2 Cook on Corporations, § 486 et seq.

We think the sounder rule is the holding that, in the absence of a clearer expression of the legislative will, the pledgee of the stock in manual possession of the certificate has an equity superior to the lien of a subsequent judgment creditor.

The circuit court having acted upon the opposing theory, its decree is reversed, with directions to proceed according to the views here expressed.

So ordered.

SHACKLEFORD, C. J., and TAYLOR, HOCKER, and WHITFIELD, JJ., concur.

WARBLE v. SULZBERGER CO. OF
AMERICA.

(Supreme Court of Alabama.

Jan. 15, 1914.) 1. APPEAL AND ERROR (8 518*)—QUESTION PRESENTED FOR REVIEW.

An assignment of error complaining of the overruling of a demurrer to a special plea cannot be considered where only the judgment entry recited a ruling on the demurrer to that plea, and the record contains no such demurrer. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2342-2355; Dec. Dig. § 518.*]

2. APPEAL AND ERROR (§ 694*)-REVIEWDIRECTED VERDICT.

A directed verdict will not be reviewed on appeal where it was based partly on a view of the place of an accident and a demonstration of plaintiff's position at the time of injury, for

4. NEGLIGENCE (§ 85*)-INFANTS-CONTRIBUTORY NEGLIGENCE-MEASURE OF CARE.

In determining whether an infant is guilty of contributory negligence, the standard of care which he should exercise should be considered with reference to the degree of care which would be exercised by minors of ordinary intelligence of his years.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §8 121-128; Dec. Dig. § 85.*1

Appeal from City Court of Birmingham; William M. Walker, Judge.

From

Action by Edward Warble, a minor, against the Sulzberger Company of America. a judgment for defendant, plaintiff appeals.

Affirmed.

Harsh, Beddow & Fitts, of Birmingham, for appellant. Estes, Jones & Welch, of Bessemer, for appellee.

MCCLELLAN, J. Action by a servant (appellant) against the master (appellee) for personal injuries received while performing duties under his employment. While cleaning a room, his hand came in contact with the unguarded revolving fenders of a fan used for ventilation; and two of his fingers were severed from the hand. At the request of the defendant, the court gave the general affirmative charge for the defendant. But two assignments of error are urged in brief, viz., that predicated of the overruling demurrer to special plea 12, and that based upon the giving of the affirmative charge as stated.

[1] The judgment entry recites a ruling on demurrer to plea 12; but there is, in this record, no demurrer to that plea. There is a demurrer to special plea 11 set out in the record; but no recital in the judgment entry of a ruling on demurrer to plea 11. There is a reference, on the margin of the record, doubtless made by the clerk to demurrer to plea 12, but the pleading against which the marginal reference is made takes no account of plea 12. That demurrer is addressed to plea 11. The question argued in brief for appellant cannot be considered in this state of the transcript.

[2-4] For two reasons error cannot be pronounced of the action of the court in giving the affirmative charge. First. While the bill recites that it contains all the evidence adduced, the bill affirmatively shows that a

view was taken by court and jury of the
scene and means of plaintiff's injury, and a
demonstration was then given court and jury,
by plaintiff, of the way in which he was hurt,
giving his position, the position of the piece
of paper which he was, when injured, en-
gaged in removing, and his own various mo-
tions and movements; the fan being at rest
when he made the demonstration. Manifest-
ly this court has not before it the full evi-
dential data the trial court had before it.
Under such circumstances, we must apply
the pertinent rule soundly announced by the
Court of Appeals in Sloss-Sheffield Co. v.
Redd, 6 Ala. App. 404, 60 South. 468, 470.
Second. The plaintiff's own testimony shows
that he, a boy a little over 15 years of age,
whose possession of average intelligence for
his years is not questioned in the evidence,
was familiar with the dangerous quality of
this revolving fan if the hand was brought
even near to it; that he had seen it started,
in motion, and stopped, and knew of its
effect to create, when in motion, a suction;
and that to put the hand within the circle of
its revolution would cause injury. Under the
pertinent doctrine of Brammer v. Pettyjohn,
154 Ala. 616, 45 South. 646, and cases therein
cited, the plaintiff could not recover. He was
the victim of his own manifest carelessness.
His conduct, with reference to the prudence
affirmative knowledge should have suggested
to him, can alone be measured by that of the
ordinary minor of his years, so informed, and
presumed average degree of intelligence. If
other jurisdictions sanction a different stand-
ard, this court cannot look with favor upon
their conclusions.

The judgment is affirmed.
Affirmed.

policy, that no person should be agent of the order for the collection of assessments or aushould have executed a bond, and the same thorized to receive any money, etc., until he should have been approved by the board of control, did not charge the insured with notice that an employé of a local agent had no authority to receive monthly assessments, or that the local agent had no authority to delegate such power to the clerk.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1903, 1905; Dec. Dig. § 753.*] 4. INSURANCE (§ 754*)-MUTUAL BENEFIT INSURANCE-ASSESSMENTS-TENDER-WAIVER.

Where the local agent of a fraternal order refused to receive a tendered monthly assessment by an insured on the ground that he was not a member of the order, the insured was not obligated to make tenders of subsequent as

sessments.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1906; Dec. Dig. § 754.*] 5. INSURANCE (§ 789*)-MUTUAL BENEFIT INNOTICE OF Loss - ESTOPPEL OR

SURANCE
WAIVER.

Where a

contract with an insured and refused to receive fraternal order repudiated a a monthly assessment on the ground that he was not a member, the beneficiary of the policy was not obligated to make seasonable proof of the death of the insured, as required by the policy, in order to recover thereon.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1963-1965; Dec. Dig. § 789.*] Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Action by Francis Connelly against the Supreme Lodge Knights of Pythias. Judgment for plaintiff, and defendant appeals.

Affirmed.

Perdue & Cox, of Birmingham, for appellant. Allen & Bell, of Birmingham, for appellee.

MCCLELLAN, J. To John M. Connelly, who died in 1906, was issued in 1895 an in

ANDERSON, SAYRE, and SOMERVILLE, Surance certificate, for $1,000, by the insur

JJ.,

concur.

SUPREME LODGE K. P. v. CONNELLY. (Supreme Court of Alabama. Jan. 22, 1914.) 1. INSURANCE (§ 825*) MUTUAL BENEFIT INSURANCE-ACTION ON POLICY-QUESTION

FOR JURY-AGENCY.

In an action against a fraternal order upon a certificate of insurance, whether a clerk of the local agent of the order had authority to refuse to receive a monthly assessment on the ground that the insured was not shown by the books to be a member of the order held, under the evidence, a question for the jury.

ance department [endowment rank] of the fraternal order known as the Knights of Pythias of the World. The monthly dues or assessments due from him on his policy contract were fully paid by him until that maturing for June, 1903. That month's assessment was not paid, as will appear from the statement to follow; so under the rules of the order, which, in part, became a part of the contract, his insurance was treated by the order as having ceased because of the forfeiture asserted to have been wrought by the failure to pay the assessment for the month of June, 1903. It was conceded that the June assessment was not paid at all, much less by the time it should have been during that month; but the forfeiture asserted thereon was sought to be avoided by reason of the authoritative, unqualified declaration of a clerk or assistant of the local agent of the order at Birmingham, to an authorized representative of the insured, that no such person as John M. Connelly had insurA provision in a by-law of a fraternal orance with the order in that jurisdiction and der, which was made a part of an insurance the declination to receive the then tendered

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 2009; Dec. Dig. § 825.*] 2. INSURANCE (§ 695*)-AGENCY FOR INSURER. The power conferred on an agent representing an insurance company is not such that it cannot be delegated.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1836; Dec. Dig. § 695.*] 3. INSURANCE (§ 753*)-MUTUAL BENEFIT INSURANCE AGENCY FOR INSURER-POWERS OF

AGENT PROVISIONS IN POLICY.

sum of the June, 1903, assessment. It ap-ed by this contest.
pears that there was an error in the books
of the local agent's (a section secretary) of-
fice whereby "H" was substituted for "M" in
the middle initial of Connelly's name. The
defendant (appellant) controverted in the evi-
dence the two major facts involved in the as-
sertion of the avoidance of the forfeiture and
denied the authority of the clerk or assistant
of its local agent to bind the order by the
declaration stated and by the refusal to ac-
cept the sum tendered, if so, in payment of
the June, 1903, assessment. The section
secretary of the order was J. H. Heineke.
The clerk or assistant was Mrs. Heineke, his
wife.

[1] With reference to the question of Mrs. Heineke's authority in the premises, our conclusion is that the court was correct in submitting that inquiry to the jury for decision on the facts and circumstances shown in the evidence.

[2] It was ruled by this court in Syndicate Ins. Co. v. Catchings, 104 Ala. 176, 189, 16 South. 46, that the powers usually (there enumerated) conferred on agents representing insurance companies are not of such personal nature, evincing personal trust and confidence only, as to invoke the maxim, "Dele gatus, non potest delegare." On brief for appellee, a number of supporting citations are collated in addition to those set down in our mentioned decision.

Under the evidence ad

duced on the trial, this statement, taken from Supreme Lodge Knights of Honor v. Davis, 26 Colo. 252, 261, 58 Pac. 595, 598, is apt: "Whether or not the July, 1890, assessments were, in fact, tendered to the financial reporter, or to an employé, or his daughter, who had been in the habit of collecting them, is immaterial, because, if the method of collecting assessments by the employé or daughter was generally adopted by the reporter, a tender to those whom he recognized as authorized to receive them would have the same effect as if tendered to him personally."

There is evidence tending to show continued service of Mrs. Heineke in the office of her husband; her access to and control over the books containing the names of the insured in that jurisdiction; her receipt of, and receipting for in the name of the agent, assessments payable at that office, including those due before June, 1903, from Connelly; her declaration, after consulting the books kept in the office, that this John M. Connelly was not among those insured in that jurisdiction; and her refusal to receive the requisite sum tendered for John M. Connelly to satisfy John M. Connelly's June, 1903, assessment. Mr. Heineke testified, among other things, that Mrs. Heineke's only authority with reference to the business of the Knights of Pythias "was to receive from members money on the dues and give a receipt." (Italics supplied.) By reference to the books of the agent's office, she ascertained, and accordingly acted, that John M. Connelly was not among those insured. was not possible, of course, for her to exercise this authority without in some way determining who were members; and in this instance she pronounced against John M. Connelly's membership as a result of her consultation of the record kept in the agent's office, whereat the assessments of John M. Connelly were payable and had long been tendered and received. Since the authority vel non, and the extent thereof, of Mrs. Heineke rested in parol, it was the duty of the court to submit these inquiries for the jury's determination. United States Co. v. Lesser, 126 Ala. 568, 28 South. 646, among

It

[3] A by-law in force and effect during 1903, which was an element of the contract under the stipulations thereof, provided: "No person shall be agent of the endowment rank for the collection of assessments, or authorized to receive any money on account thereof, until he shall have executed and delivered a bond as required by this section, and the same shall have been approved and accepted by the board of control." It is manifest, we think, that this by-law was only intended, and in fact effected, to safeguard the interest of the order in respect of assuring the accounting for and payment of the assessments. There is nothing in the by-law precluding the reliance by an insured upon the every indicia, as shown by phases of this evidence, of qualification of those in the local office at Birmingham to collect assessments against those who had policies in the order. Nor is there anything in the by-law restricting an agent like J. H. Heineke, who had qualified as the by-law requires to receive or collect assessments from persons due to pay them, to commit the exercise of his functions in that regard to a clerk or assistant of the character the evidence, in some of its phases, tended to show Mrs. Heineke was. No difIf the jury were reasonably satisfied from ference in construction of the by-law would the evidence of Mrs. Heineke's authority in or could result from the fact, which we as- the premises, and also reasonably satisfied sume, that this insured knew of every pro- that the tender of the June assessment was vision in the quoted by-law. It is, of course, refused because John M. Connelly was not the terms alone of the by-law that affect the a member and was not among those insured

others.

[4] It is urged for appellant that, even if the June, 1903, tender was made and refused by Mrs. Heineke as, when and on the ground the evidence tends to show, it was incumbent upon John M. Connelly to subsequently continue the tender of the monthly assessment, and failing that, as was the case here, the forfeiture asserted was effected.