Lapas attēli

from cutting and removing the timber grow- | As was held in Wearse v. Peirce, 24 Pick. ing on such lands, and for general relief. (Mass.) 141: The appellant filed his answer under oath, although the same had been expressly waived, in which he admitted the execution of the note and mortgage, but averred a total want of consideration. A replication was filed to the answer, and the cause was referred to an examiner to take and report the testimony which might be adduced by the respective parties. Upon the filing of the testimony so taken, the cause came on for a final hearing, and a final decree was rendered in favor of the complainant against the defendant Jehu Chesser, as to the foreclosure of the mortgage, but no injunction was granted and the bill was dismissed as to the defendant Charley Cason. From this decree the appellant has entered his appeal, and has assigned four errors, all of which question the correctness of the decree, and may be considered together.

"In an action brought by the administrator of a mortgagee against the mortgagor to recover possession of land mortgaged to secure the payment of a promissory note, it is a good defense that the note was given without consideration; and the demandant cannot rebut such defense, either by direct evidence showing that the note was also given with a view to defraud the creditors of the mortgagor, or by arguing to the jury, from other evidence in the case, that it was so given." As was said by Chief Justice Shaw in the opinion: "The general rule of policy is, 'In pari delicto potior est conditio defendentis.' If there was an intent to defraud creditors, it was an intent common to both parties, affecting as well the plaintiff's intestate as the defendant. It is the plaintiff who is the actor and is seeking to enforce the payment of these notes." Also see to the same effect, Hannan v. Hannan, 123 Mass. 441, 25 Am. Rep. 121; Briggs v. Langford, 107 N. Y. 680, 14 N. E. 502. The principle also finds sup

W. 258, 10 L. R. A. 665, 20 Am. St. Rep. 592; Moffett v. Parker, 71 Minn. 139, 73 N. W. 850, 70 Am. St. Rep. 319; Sackner v. Sackner, 39 Mich. 39. This principle has also been recognized by this court in Kahn v. Wilkins, 36 Fla. 428, 18 South. 584.

The decree is reversed, with directions to dismiss the bill.


Very concisely stated, the appellant avers in his answer that he was not indebted to the appellee in any sum, and that the mortgage and note were executed without any consid-port in Devlin v. Quigg, 44 Minn. 534, 47 N. eration whatever. The appellant proceeds to set out at some length the facts and circumstances under which the note and mortgage were executed, which, in brief, are to the effect that the appellant had a nephew by the name of John Chesser, who was engaged in the mercantile business prior to and at the time that the note and mortgage were executed, who had become largely indebted to various mercantile firms, who had instituted actions against him and the appellant as copartners, though in truth and in fact no such copartnership had ever existed; that the appellant became alarmed over the bringing of such actions, and, never having had any experience in litigation, and being an ignorant man, he went to a certain justice of the peace for counsel, who advised him to execute a note and mortgage to some one in whom he had confidence; that the appellant then went to the appellee, who is his brother, and who advised the appellant to make the note and mortgage to him, the appellee, which the appellant did, there being no consideration therefor whatever. The averments in the answer as to the want of the

(67 Fla. 1)

DALY v. STATE. (Supreme Court of Florida. Jan. 20, 1914. Headnotes Filed Feb. 23, 1914.)


Assignments of error must be predicated upon objections duly presented at the trial and upon exceptions there duly taken to the rulings of the court, else they cannot be considered by the appellate court.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2619-2621, 2632, 2653; Dec. Dig. 1030.*]


consideration are direct, positive, and cer-
tain, so that the burden of proving the con-
sideration was thereby cast upon the com-
plainant. Mayo v. Hughes, 51 Fla. 495, 40
South. 499. We have subjected all the testi-fers
mony to a careful examination, and are of
the opinion that the complainant failed to
sustain this burden. In fact we think the

himself as a witness on his own behalf, he Where an accused on trial voluntarily ofthereby voluntarily subjects himself to any le gitimate cross-examination, whether such crossexamination tends to criminate him or not. Cent. Dig. 88 1053-1057; Dec. Dig. § 305.*] [Ed. Note. For other cases, see Witnesses,

proofs adduced sustain the averments in the answer. It is contended by the appellee that this cannot avail the appellant by reason of the fact that he executed the note and mortgage for the purpose of defrauding his cred- Clarence Daly was convicted of rape, and itors. To this contention we cannot agree. I brings error. Affirmed.

Error to Circuit Court, Dade County; Jas. W. Perkins, Judge.

J. I. Mitchell and G. E. McCaskill, both of er he had been put in there, in reply to a Miami, for plaintiff in error. T. F. West, | question by the girl as to what he had been Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.

TAYLOR, J. The plaintiff in error, hereinafter referred to as the defendant, was tried and convicted of the crime of rape at a special term of the circuit court of Dade county, and from the judgment and sentence of death imposed takes writ of error here.

[1] The first four assignments of error are predicated on the denial of the defendant's motion for a new trial on the grounds that the evidence was insufficient to support the verdict; that the verdict was contrary to law and to the evidence. These assignments we will take up hereafter. The fifth assignment of error is that the court erred in permitting the state's attorney to indicate the prisoner in open court and to ask the prosecutrix, "Is that the man?" We do not find either an objection or exception in the record before us to the proceeding complained of in this assignment, and it must therefore be adjudged against the defendant.

Assignments of error must be predicated upon objections duly presented in the trial court, and upon exceptions there duly taken to the ruling of the court, else they cannot be considered by the appellate court.

The sixth assignment of error alleges that the court below erred in permitting the state to cause the prisoner to stand or move from his seat for the purpose of identification by the prosecutrix. Unfortunately for this assignment, the record before us does not verify the truth of its assertion, but, on the contrary, shows affirmatively that the trial judge ruled that the state's attorney could not cause the prisoner to stand up for identification by the prosecutrix, but permitted him to send the prosecuting witness over near to the prisoner, where she identified him positively.

The seventh assignment of error is that the court erred in permitting the state's attorney to ask the defendant on cross-examination if he did not state to one Mr. Deleplane on the night of the commission of the crime that he had had trouble with the marshal and wanted to leave his grip with him. We do not find any objection or exception in the record upon which this assignment could be predicated; but, even if there were, there would be no error in permitting the question, as it would have been legitimate cross-examination and would have been the laying of the proper predicate for contradiction of the witness if he had denied making the statement to Deleplane as to having had trouble with the marshal.

[2] The eighth assignment of error complains of the court's permitting the state's attorney to ask the defendant, while a witness on his own behalf on cross-examination, if in a conversation with a negro girl named

arrested for, he answered for assaulting a woman, and when the girl asked him further, "Why did you jump on that poor old woman?" did you not reply, "An old woman loves it as well as a young one." Did that conversation take place? The objections made to this question were that it was not in pursuit of the direct examination, and that it was leading and tended to make the defendant criminate himself. There was no error in the ruling here complained of. As to the contention that the question propounded was not in pursuit of the direct examination, the witness was evidently an adverse one, and to sift the truth of his testimony the state was not to be confined strictly to the subjects of the direct examination, and leading questions were for the same reason permissible. As to the objection that the question tended to incriminate him, he could not take advantage of that objection, since he had voluntarily subjected himself as a witness on his own behalf and thereby voluntarily subjected himself to any legitimate cross-examination, whether such cross-examination tended to criminate him or not; indeed, it may be said of the entire cross-examination of a defendant on trial, who voluntarily offers himself as a witness on his own behalf, that its tendency is to incriminate him. The evidence here sought was pertinent to the issues and was the laying of a proper predicate for impeachment of the witness. 2 Chamberlayne's Modern Law of Evidence,


The ninth assignment of error alleges error in the court's permitting the state's attorney to ask the defendant on cross-examination: "Isn't it a fact that all of these parties here have tried to get you here to tell something about it, and you refused to talk?" There was no error here. The defendant in his defense endeavored to fix the crime on an unknown party that he said was called Joe Feury, but no hint of such a defense was ever given until it developed out of the defendant's own testimony as a witness on the stand at the trial. That he did not talk of this imaginary individual Feury before this, so that he might have been apprehended and the truth of the defendant's accusations against him investigated, tended to cast suspicion upon the truthfulness of the defendant's accusations against him, and was a legitimate subject of inquiry.

The tenth assignment of error complains of the following question permitted by the court to be propounded by the state's attorney to a police officer in rebuttal of the defendant's testimony: "Had he (meaning the defendant) been there at the station and around the town there, walking around the streets, after you had been notified, would he have been apprehended by your men?" There was no error here. The defendant as

mission of the crime and another crime of larceny from him of $20 by the imaginary 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



(67 Fla. 36)


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

(Syllabus by the Court.)


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 de cree 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.

ment creditors, who secured their judgment after the stock had been pledged in good faith 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.

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

transfer subsequently in point of time to the the Supreme Court has not before it all of the 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

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(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.*1


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

evidential matters before the trial court. Error, Cent. Dig. §§ 2910, 2915; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 694.*]



A boy over 15 years of age, engaged to clean a room in which there was a revolving fan, was guilty of contributory negligence, as a 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. 88 687-700; Dec. Dig. § 230.*]


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.

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

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

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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 giv

ing 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 evence adduced, the bill affirmatively shows that a

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


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

view was taken by court and jury of the | policy, that no person should be agent 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, engaged in removing, and his own various motions and movements; the fan being at rest when he made the demonstration. Manifestly this court has not before it the full evidential 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 standard, this court cannot look with favor upon

their conclusions.

The judgment is affirmed.

contract with an insured and refused to receive Where a 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.


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.

(185 Ala. 301)



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 author3. INSURANCE (§ 753*)-MUTUAL BENEFIT IN-ized representative of the insured, that no SURANCE AGENCY FOR INSURER-POWERS OF such person as John M. Connelly had insurance 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 (8 695*)-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.*]


A provision in a by-law of a fraternal or

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