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collateral security for the payment of this note the same warehouse receipts for whisky now in the possession of the Atlas National Bank, and pledged with said bank as collateral security for loans or their renewals of said loans; and, after the payment of said loans or their renewals to the Atlas National Bank, then the balance of said warehouse receipts are to be held by the said Henry Dieckmann as collateral security to his note. And we hereby give to the holder hereof full power to sell or collect at his expense all or any portion thereof at any place, either in Cincinnati or elsewhere, at public or private sale, at holder's option, on the nonperformance of the above promise, and at any time thereafter, and without advertising the same, or otherwise giving to him any notice. In case of public sale the holder may purchase without being liable to account for more than the net proceeds of said sale. [Signed] H. F. Stothfang. F. H. Stothfang." The Atlas National Bank on the 15th day of May, 1899, was served with a copy of the above instrument, as shown by the following writing: "Cincinnati, Ohio, May 15th, 1899. The Atlas National Bank, City-Dear Sirs: I attach hereto a copy of a promissory note given on May 12th, 1899, to Henry Dieckmann, and signed by myself and brother. The note explains itself. are to keep possession of the warehouse receipts and the insurance policies for the whisky which you have as collateral security for loan to me, and, after these loans are fully paid up to you, the balance of the warehouse receipts are to be turned over to Henry Dieckmann or to O. J. Renner, his attorney, to be held by them as collateral security for the note hereto attached. The insurance policies on this whisky is also to be turned over when your claim is fully paid. Yours very truly, H. F. Stothfang." H. F. Stothfang for a year or more prior to the transaction was in partnership with his brother F. H. Stothfang, and they did business under the firm name of H. F. Stothfang & Bro.; but said partnership was dissolved, and H. F. continued the business, assuming its liabilities and taking its assets. At the time of the execution of the note signed by Dieckmann, and prior thereto, H. F. Stothfang was insolvent, and so continued insolvent, but Dieckmann had no knowledge of said insolvency. On the 7th of August, 1899, H. F. Stothfang made a general assignment, under the laws of the state of Ohio, for the benefit of creditors, to August H. Bode; and the deed of such assignment was filed in the court of insolvency of Hamilton county on the same day, and the assignee accepted the trust and duly qualified. The warehouse receipts representing said whisky, being then in the possession of the Atlas National Bank, were sold by the assignee, and realized about $2,300; leaving in the hands of the assignee at the time a balance of $1,300, after having paid the At

las National Bank in full under order of the insolvency court. A further fact agreed upon is: "That at the time the assignee sold the whisky under the order of the insolvency court, the bank having the warehouse receipts in its possession declined to turn them over to the assignee until the bank had its claim paid. The bank further declined to turn them over to the assignee until Dieckmann or his counsel consented to it, the bank having accepted the notice sent by Dieckmann's counsel. Dieckmann's counsel declined to consent to the turning over of the warehouse receipts at that time, and immediately went to the insolvency court, and that court made an entry before the warehouse receipts were turned over to the assignee and purchaser, reserving all the rights of Dieckmann." Whatever rights Dieckmann had or has were preserved by an entry made by the court of insolvency, a copy of which is as follows: "It appearing to the court that, upon a lot of 165 barrels of whisky sold by the assignee herein, the Atlas National Bank, Henry Dieckmann, and C. Rodenberg claim liens for $1,063, $1,025, and $248, respectively, and it further appearing that the warehouse receipts to said whisky are in the possession of said Atlas National Bank, and that it becomes necessary to deliver said warehouse receipts to said assignee to complete said sales made by him under the order of this court, it is hereby adjudged that said delivery shall in no wise prejudice and interfere with the rights that said Dieckmann and Rodenberg had previous to said sale and delivery in said goods or warehouse receipts, or to the right to the possession thereof, and that all their rights are fully preserved." Dieckmann claims to be entitled to payment in full of his note, with interest, out of the proceeds of the sale of said warehouse receipts in the hands of the assignee, which claim to be so paid is denied by the creditors of H. F. Stothfang, claiming that Dieckmann is entitled to share in the proceeds only as a general creditor, and that the above arrangement between him and the assignor is void under section 6343, Rev. St. On these facts the court of common pleas found for Dieckmann, and made an order for his payment accordingly. A new trial was refused, and error was prosecuted in the circuit court, where the judgment of the common pleas was affirmed; and August Hunt, a creditor of the assignor prosecutes error in this court to obtain a reversal of the judgments of the lower courts.

Charles F. Williams, Henry Woost, and C. A. Groom, for plaintiff. Renner, Gordon & Renner, for defendant in error.

PRICE, J. (after stating the facts). There are two questions presented in the record for our determination, which are: (1) The Atlas National Bank, having in its possession certain warehouse receipts for a stock of whisky

given it by H. F. Stothfang in pledge as collateral for a loan of money made to him by the bank, could the pledgor make another valid pledge or a transfer to Dieckmann of an interest in the same receipts, without any change of possession, as collateral security for a debt due him from the pledgor? (2) If the pledgor filed a deed of general assignment for the benefit of creditors within 90 days after the making of the second pledge or transfer, is such pledge or transfer void under the provisions of section 6343, Rev. St.?

1. The facts agreed upon show that H. F. Stothfang, for several years prior to the transaction involved, had been indebted to one Dibowski in the sum of $1,000 and accruing interest, and that on the last note for this debt Dieckmann had become liable as surety or indorser, and, when it matured, Stothfang neglected payment. To avoid threatened suit, Dieckmann satisfied the note of Dibowski by giving his individual note, secured by a mortgage on his real estate. At the same time Dieckmann took the note of H. F. Stothfang, which contains a provision that, after the debt which he owed the Atlas National Bank was paid out of certain warehouse receipts for whisky which it held in pledge as security for the debt, the balance of said receipts were to be held by said Dieckmann as collateral security to his note, and in this provision power of public or private sale was conferred upon him. This instrument was executed and delivered on the 12th day of May, 1899, and on the 15th day of May a copy of the above note and provision was served on the bank, with a notice that it should keep possession of the warehouse receipts pledged with it as collateral security for its claim against the pledgor, Stothfang, and that after it was fully paid the balance of the warehouse receipts were to be turned over to Henry Dieckmann, who is one of the defendants in error. This notice and copy of the note given him were received, accepted, and acted upon by the bank; and it was holding those receipts when Stothfang assigned, on the 7th of August, 1899. It seems no question was raised by the assignee or any creditor as to the right or lien of the Atlas National Bank, but it is insisted that the attempted transfer or pledge to Dieckmann is invalid, because he never was in possession of the receipts, or the whisky represented by them. On this branch of the case it may be remarked that delivery of the property pledged is generally essential to a valid pledge, and it is equally true that, to make a valid sale or transfer of any species or article of personal property, a delivery of the property sold or transferred is necessary; and to this extent the authorities cited by counsel for plaintiff in error may be approved. But it does not follow that actual or physical delivery should always accompany the sale or transfer, and this is also true as to the pledging of choses in action or other kinds of personal property. The deliv

ery in some cases may be symbolical, such as the handing over the writing which constitutes the title to the property, just as was done in this case, to secure the Atlas National Bank for the money it had loaned to Stothfang. He delivered to the bank, not the 165 barrels of whisky, but the warehouse receipts for the same, which were its muniment of title, and control of the property they represented. And when the pledgor desired to secure the payment of the note held against him by Dieckmann, he executed and delivered to him the transfer of all interest in the receipts which would remain after the bank's claim should be satisfied. This transfer was not strictly a pledge, but an assignment and transfer of the stated interest in the warehouse receipts; but if it is desired that we call it a pledge, as has been done by counsel, we still observe that constructive possession in the second pledgee would be sufficient, if the intent to deliver such possession is clearly apparent. It is the application of the familiar rule that the transfer is complete, and delivery made, when the owner has done all that he can do in the premises, and has given such possession to the pledgee or transferee as the nature of the property and its situation will permit. In this case Stothfang owned a valuable equity in the warehouse receipts held by the bank, as their sale afterwards made manifest, and it was such interest in them that could be made the subject of sale and transfer, and even pledge; and certainly Stothfang gave to Dieckmann possession of all interest in and title to the receipts which would remain after the debt due the bank was satisfied. This was all the delivery that could then be made, and it was at least a constructive delivery; and this, we think, meets the demands of the law. In section 297 of Story on Bailments, the author, on the subject of the pledges, says: “It is of the essence of the contract that there should be an actual delivery of the thing to the pledgee. Until the delivery of the thing, the whole rests in an executory contract, however strong may be the engagement to deliver it, and the pledgee acquires no property in the thing. What will amount to a delivery of the thing is in many cases a matter of law. There need not be an actual manual delivery of the thing. It is sufficient if there are any of those acts or circumstances which, in construction of law, are deemed sufficient to pass the possession of the property. Thus goods at sea may be passed in pledge by a transfer of the muniments of title, as by a transfer of the bill of lading, or by a written assignment thereof. So goods in a warehouse may be transferred by a symbolical delivery of the keys thereof. In the

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case of Wilson v. Little, 2 N. Y. 443, 51 Am. Dec. 307, the court of appeals of New York held: "Possession of the property is essential to the existence of a pledge, but the possession may be according to the nature of the subject. Where the property is not capable

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of manual delivery and possession (shares of stock in an incorporated company), a pledge may be created by a written transfer thereof. And on page 447, 2 N. Y., that court says: "There seems to be no reason why any legal or equitable interest whatever in personal property may not be pledged, provided the interest can be put, by actual delivery or written transfer, into the hands or within the power of the pledgee, so as to be made available to him for the satisfaction of the debt. Goods at sea may be passed in pledge by a transfer of the muniments of title, as by written assignment of the bill of lading. This is equivalent to actual possession, because it is a delivery of the means of obtaining possession." The case of Tuxworth v. Moore, 9 Pick. 347, 20 Am. Dec. 479, is also in point. See, also, Whitaker v. Sumner, 20 Pick. 399. These are but a few of the many decided cases to the same effect. Another view of the facts in this case may be justified. When the bank received the notice appearing in the record, it acted upon it, and in so doing became the agent of Dieckmann for the purposes specified; and its possession might be regarded as the possession of Dieckmann, and thus satisfy the legal requirement as to delivery.

2. Was the pledge or transfer void because of the provisions of section 6343, Rev. St., as amended in 1898? As a construction of that section is involved, it is well that it appear in this opinion. It reads:

"Every sale, conveyance, transfer, mortgage or assignment, whether made in trust or otherwise, by a debtor or debtors, and every judgment suffered by him or them, and act or device done or resorted to by him or them in contemplation of insolvency, or with a design to prefer one or more creditors to the exclusion in whole or in part of others, and every sale, conveyance, transfer, mortgage or assignment made or judgment suffered by a debtor or debtors, or procured by him or them to be made, in any manner, with intent to hinder, delay or defraud creditors, shall be declared void as to creditors of such debtor or debtors, at the suit of any creditor or creditors, as hereinafter provided, and shall operate as an assignment and transfer of all the property and effects of such debtor or debtors, and shall inure to the equal benefit of all creditors of such debtor or debtors in proportion to the amount of their respective demands, including those which are unmatured.

"And every such sale, conveyance, transfer, mortgage or assignment made, and every such judgment suffered, and every such act or device done or resorted to, by any debtor or debtors, in the event of a deed of assignment being filed within ninety (90) days after the giving or doing of such thing or act, shall be conclusively deemed and held to be fraudulent and shall be held to be void as to the assignee of such debtor or debtors, where upon proof shown, such debtor or debtors 64 N.E.-9

was or were actually insolvent at the time of the giving or doing of such act or thing. whether he or they had knowledge of such insolvency or not.

"Provided, that nothing in this section contained shall vitiate or affect any mortgage made in good faith to secure any debt or liability created sumultaneously with such mortgage, if the same be filed for record in the county wherein the property is situated, or as otherwise provided by law, within three (3) days after its execution, and where upon foreclosure or taking possession of such property the mortgagee fully accounts for the proceeds of such property."

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The pledge or transfer to Dieckmann was made on the 12th day of May, 1899, by H. F. Stothfang; and he filed a deed of assignment on the 7th of August of the same year, which was within 90 days after the making of the pledge or transfer. Notwithstanding this fact, and the language of section 6343, Rev. St., the transactions of the 12th of May are not necessarily void. There still may be valid sales, conveyances, and transfers of property made, and which will not be affected, although the seller or transferror may file a deed of assignment within 90 days thereafter. The clause of this section, and which is an important part of the amendment of the original section, provides that "every such sale, conveyance, transfer made by any debtor, or debtors, in the event of a deed of assignment being filed within ninety days after the giving or doing of such thing or act, shall be conclusively deemed and held to be fraudulent, and shall be held to be void as to the assignee of such debtor or debtors, where upon proof shown, such debtor or debtors was or were actually insolvent at the time of the giving or doing of such act or thing, whether he or they (the debtor or debtors) had knowledge of such insolvency or not." It will be seen that the word "such," among the first words of the addition to the original section, fills an important and determinative office in the construction of what follows it. It relates back to the preceding paragraph of the section wherein is provided what sales, transfers, etc., shall be declared void as to creditors of such debtor or debtors at the suit of any creditor or creditors; and the sales and transfers, etc., which may be so declarIed void at the suit of the creditors, are such as were made in contemplation of insolvency, or with a design to prefer one or more creditors to the exclusion, in whole or in part, of others; and every sale, conveyance, transfer, etc., with intent to hinder, delay, or defraud creditors. "Such" sales, conveyances, transfers, etc., as are thus enumerated, shall be declared void at the suit of a creditor. And it is "such" sales, conveyances, transfers, etc., as above enumerated, that shall be conclusively deemed fraudulent and void as to the assignee if the assignment is made within 90 days after such sales, conveyance, transfer, etc. In order to warrant any other

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construction, we must eliminate and wholly disregard the word "such," which seems to have been purposely used by the legislature, and not through accident or mistake. That word brings the class of acts and things done as set out in the original, and which is yet the principal provision on the subject, down to the new declaration made by the amendment concerning them, and says, "every such sale, conveyance, transfer in the event of a deed of assignment being filed within ninety days * * shall be conclusively deemed and held to be fraudulent," etc. We have no right or authority to despise or disregard this significant word, but must construe the section with it performing its legitimate function; and, if such construction tends to render the amendment of 1898 somewhat unproductive of intended or desired results, it is not the fault of the court, as it is not the lawmaking power. Therefore if the sale or conveyance or transfer was not in contemplation of insolvency; if it was not made with intent to hinder, delay or defraud creditors, or with a design to prefer one or more creditors to the exclusion, in whole or in part, of others,-the transaction will stand in a suit brought by a creditor; and such sale, conveyance, or transfer will also stand, although made within 90 days next preceding the filing of a deed of assignment by the maker of the sale, conveyance, or transfer. This conclusion rests upon the ground that the transactions were in good faith, and without the dishonest or fraudulent motive and intent which are the basis of an action to avoid them. The legislature, in this part of the law regulating the acts of insolvent debtors, and providing a mode of administering their estates, did not intend by the amendment to the section under consideration to enact a system of bankruptcy, but, rather, attempted to provide a rule of proof in such cases, as is shown by the entire amendment, because the sales, conveyances, and transfers that are "conclusively deemed and held to be fraudulent," where an assignment follows within 90 days thereafter, are only such sales, conveyances, and transfers, etc., as are condemned in the main provision of the section, but proof must appear to show that "the debtor or debtors was or were actually insolvent at the time of the act done," whether he or they (the debtor or debtors) had knowledge of such insolvency or not. It seems clear, therefore, that the transfer or pledge by Stothfang to Dieckmann is not void because it was made within 90 days preceding Stothfang's assignment, but that proof was necessary to show that such transfer was made in contemplation of insolvency, or with a design to prefer one or more creditors to the exclusion, in whole or in part, of others, or with intent to hinder, delay, or defraud creditors, inasmuch as it is such sales, conveyances, transfers, etc., that fall within the 90-day clause. The record in this case shows none of the foregoing facts requisite to avoid the

pledge or transfer. It is true, Stothfang was insolvent when he made the pledge to Dieckmann, but of this the latter had no knowledge. There is no finding of fact in the record which brings the case within the section as we construe it, and as no fraud, or intent to prefer, hinder or delay, is shown, we will not presume either.

On both questions we approve of the judg ment of the circuit court, and it is affirmed. Affirmed.

WILLIAMS, C. J., and BURKET, SPEAR, DAVIS, and SHAUCK, JJ., concur.

(66 Ohio St. 326)

NEW YORK, C. & ST. L. R. CO. v. KISTLER.

(Supreme Court of Ohio. May 13, 1902.) RAILROADS-ACCIDENT AT CROSSING-CARE REQUIRED-SPEED OF TRAIN-IMPUTED NEGLIGENCE.

1. When the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, and a motion is made to require such pleading to be made definite and certain, it is error to overrule such motion.

2. In an action founded upon negligence, the petition should state the acts of commission or omission which the plaintiff claims to have caused the injury; and, that statement being made, it is sufficient to aver that such acts were carelessly or negligently done or omitted.

3. In the absence of a statute regulating the rate of speed of railroad trains, it is not negligence for a railroad company to run its traius, in the open country, at such rate of speed as those in charge of the same may deem safe to the transportation of passengers and property, unless there are facts and circumstances which, when taken in connection with a high rate of speed, would make such speed an element or factor in constituting negligence; and in such cases such facts and circumstances should be pleaded.

4. As between a person about to cross over a railroad at a crossing and a train of cars approaching such crossing, the train has the right of way. This is so because the person can stop within a few feet and the train cannot.

5. The looking required before going upon a crossing should usually be just before going upon the track, or so near thereto as to enable the person to get across before a train within the range of his view of the track, going at the usual rate of speed of fast trains, would reach such crossing.

6. It is the duty of a locomotive engineer to keep a lookout on the track ahead of the train. If, while so doing, his eye takes in a person approaching the track, he may assume that such person will keep away from the track until the train passes, but when it becomes evident that such person will not keep off the track it becomes the duty of such engineer to use ordinary care to prevent injury to such person; his first and highest duty, however, being for the safety of the passengers and property in his charge for transportation.

7. As a railroad company has no control over the trees, weeds, brush, shrubbery and the like not on its right of way, it is not required to take such things into consideration when ap proaching a crossing.

8. While the doctrine of imputed negligence does not prevail in this state, yet, where two or more persons take an active part in a joint enterprise, the negligence of each, while so active

ly engaged, must be regarded as the negligence of all.

9. Whatever a locomotive engineer, and those with him on the engine, would see while in the proper discharge of their respective duties, they are chargeable with having seen.

(Syllabus by the Court.)

Error to circuit court, Sandusky county.

Action by Annie Kistler against the New York, Chicago & St. Louis Railroad Company. Judgment of the court of common pleas in favor of plaintiff was affirmed in the circuit court, and defendant brings error. Reversed.

tion. The county road was sandy, and it had rained a little the previous night, and the air was clear with a slight breeze from the northeast. The father sat on the right side and drove the team, and as they passed the woods he told her that they were nearing the railroad and requested her to look and listen for trains, which she did by raising the rear curtain some three times before reaching the ridge road. After passing that road she remembers nothing, but within 100 feet of the crossing the father was seen to bend forward and look out toward the railroad. The team was going on a slow trot until it passed over the ridge road, and then it went faster, one horse trotting and the other galloping till they reached the crossing, but whether the driver was urging them ahead to get over the crossing ahead of the train, or whether he had partly lost control of them, is left in doubt by the evidence. There was no slacking of the speed of the train and the engineer did not see them before the collision, but the evidence tends to prove that the fireman and a brakeman on the engine and the conductor, brakeman, and foreman on the caboose saw them when the team was within about 100 feet of the crossing. It is conceded that a whistle for the crossing was given, but she claims that it was not given at the proper place, and that it was not given until after passing the ridge road, and that it scared the horses and caused them to increase their speed. The evidence as to the signal by whistle is con

On the morning of June 2, 1892, Annie Kistler, defendant in error, and her father were driving west on the county-line road between Seneca and Sandusky counties, in a buggy drawn by two quiet farm horses, the side and rear curtains being down, the latter being loose at the bottom. Her father was very deaf, and it was his custom to take one of his children along to hear for him, and he had taken Annie along that morning for that purpose. He was aged 57 years, strong and in good health. The county-line road crossed over the track of the New York, Chicago & St. Louis Railroad at grade and at an acute angle, the railroad running a little south of west and the wagon road running east and west. As the father and daughter were on the crossing they were struck by a freight train composed of an engine, four cars, and a caboose, going southwest at a speed of from 20 to 40 miles an hour. The father was killed and the daugh-flicting. The bell seems to have been rung. ter badly injured, and this action was brought by her against the railroad company for the recovery of damages. At a distance of 216 feet east of the crossing, a road known as the "Ridge Road" crosses the county-line road and, running in a northeast direction, crosses the railroad at a point 346 feet from the crossing of the county-line road over the railroad. At a distance of 89 rods east of the crossing is the west line of a tract of 15 acres of woodland, lying between the county-line road and the railroad. Just east of the ridge road, and partly on the right of way of the railroad and partly on the land adjoining on the south, there stood a wild cherry tree, which the evidence tended to show to be 8 to 12 inches in diameter, 30 feet high, with a broad bushy top from 25 to 30 feet in diameter, and the branches coming within 3 to 8 feet of the ground. Along the east side of the ridge road, and about 20 feet south of the cherry tree, there was a locust tree about the same size as the cherry, with some sprouts around it from 4 to 12 feet high. There were also some weeds 3 or 4 feet high along the ridge road, and along at that place there was a small cut 2 to 3 feet deep, and thence to the crossing where the accident occurred the county road and railroad were on a level. There were no other or further obstructions. She had often passed there, and knew the situa

The petition avers that the railroad company negligently and carelessly approached and crossed said highway with said locomotive and train of cars at a high, immoderate, and dangerous rate of speed, and negligently and carelessly omitted to give proper and sufficient signals or warning of the approach of said locomotive and train to said crossing and of the existence of said crossing, and negligently and carelessly allowed and maintained obstructions to a proper view of its said train, locomotive, and railroad, and negligently and carelessly operated and handled its said locomotive and train of cars. The railroad company filed a motion to compel her to make her petition definite and certain as to the acts of negligence charged, and particularly to state the facts in regard to the defendant negligently and carelessly operating and handling said locomotive and train. and to strike out the words "at a high, immoderate, and dangerous rate of speed." The court of common pleas overruled the motion, to which the defendant below excepted. The answer was a general denial as to the negligence charged and a plea of contributory negligence on her part. She denied the contributory negligence in her reply. She recovered a judgment on the first trial, which was reversed by the circuit court, and upon another trial she again recovered a verdict. A motion for a new trial

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