After a brief illness, Frank F. Rankin died, Tuesday evening last, in this city, in the 26th year of his age. The subject of this sad notice, though known comparatively little to the profession outside the city of Columbus, was well known to the members of the bar in this county, as one of the sturdiest types of manhood ever exhibited in our midst.

We knew him a few years ago, an awkward country boy, so to speak, as he emerged from school, and took his place among the toilers in this busy world. He was a hard worker in the press room of the Ohio State Journal, where one of the editors of this paper was at that time doing service as a member of the reportorial staff of that paper. While he labored physicWhile he labored physically, he busied his mind, and filled in his every spare moment in acquiring a knowledge of books, which soon resulted in his being placed among the local news gatherers and writers of the Journal. While thus employed he continued his studies further and entered earnestly upon the study of the law. Last spring he was admitted to the bar, by the Supreme Court, standing high in the large class examined.

He was always a hard worker, always willing to lay his hand to whatever of good or profit he could find to do. He was honest and upright in all his dealings, and though a young man, had established himself staunchly in the confidence of the public.

He was frugal, economical, strictly temperate and regular in his habits, and manly in his religious principles. His short life, had in it, examples of emulation for the young men of today, and shows forth how much can be made by a careful and considerate use of time and strength given us here, for the battle of life. He was a noble specimen of energetic, honest manhood, and as we have admired his character, so do we mourn among his many friends, his early taking away.

Vol. 36 O. S. Reports has been at last completed by the printers, Banks & Bros., New York. The work is not up to the standard of excellence achieved by Messrs. Robt. Clarke & Co., while the contract was with them.

SUPREME COURT OF OHIO.

THE STATE EX REL., ATTORNEY GENERAL,

V.

JOHN W. MERCHANT ET AL.

November 8, 1881.

1. The right of the stockholders of a railway corporation to elect directors, is not affected by the sale of the property of the corporation by a receiver, under an order of court.

2. At a meeting of the stockholders, called for the election of directors, under section 3246, Rev. Stats., the right to choose the inspectors or judges of election, is vested in the stockholders; and the directors, against the will of the stockholders present, cannot appoint such inspectors.

Judgment of ouster against the defendants, and the directors elected at the election held under the authority of the stockholders, adjudged entitled to the office under such election.

Quo Warranto.

This is an information in the nature of quo warranto brought by the Attorney General against John W. Merchant and others, defendants, to oust them from the office of directors of The Columbus, Washington and Cincinnati Railway Company, a corporation organized under the laws of this State.

The petition sets forth the names of Thomas Smith and others, who claim to be entitled to the office of directors of said corporation and avers their right thereto.

It appears that the defendants were the directors of said corporation elected at the annual election held on the first Monday of January, 1879. On the first Monday of January, 1880, being the day for the annual election, no election was held; and that afterwards due notice was given in accordance with the statute by certain stockholders of the holding of an election for directors at a time and place 'specified. A meeting of stockholders was held in accordance with the notice. After organizing, the stockholders present, elected inspectors, or judges of the election, and also a clerk, who were all duly sworn. Whereupon the judges declared the election open and proceeded to receive the votes of stockholders. The election thus held resulted in the election of Smith and others, who are averred in the petition, as above stated, to be entitled to the office of directors of said corporation.

There were present at the meeting a quorum of the directors elected in 1879, who claimed the right to hold the election. Before the inspectors, or judges and clerk elected as above stated, were board of directors, appointed from the members sworn, John W. Merchant, President of the of the board, judges to hold the election, he also appointed a clerk and then declared the election open. At this election stockholders voted. The election thus held by the directors resulted in the election of the defendants. Both sets of di rectors took the oath of office.

It does not appear from the pleadings that any election has since been held. It also appears that on the 9th of September,

1878, the court of common pleas, on the application of certain bondholders, appointed a receiver, who took possession of the assets of the company and subsequently, under an order of said court, the railroad of said company with its equipments and appurtenances was sold as an entirety.

Nesbitt & Martin for plaintiffs.
Charles Darlington for defendants.
WHITE, J.

The appointment of the receiver, and the sale of the property of the railway company have no bearing on the question before us. These facts did not work a dissolution of the corporation, and while the corporation continued it was competent for the stockholders to elect directors.

The only other question for determination is, whether the election held by the directors or that held by the stockholders is the valid one.

The statute on the subject is as follows: "Unless the regulations of the corporation otherwise provide, an annual election for trustees or directors shall be held on the first Monday in January of each year; if the trustees or directors are, for any cause, not elected at the annual meeting, or other meeting called for that purpose, they may be chosen at a members' or stockholders' meeting, at which all the members or stockholders are present in person or by proxies, or at a meeting called by the trustees or directors, or any two members or stockholders, notice of which has been given, in writing, to each stockholder, or by publication in some newspaper printed in the county where the corporation is situate, or has its principal office, for ten days;

and trustees and directors shall continue in office until their successors are elected and qualified." Rev. St. § 3246.

There were no regulations of the corporation governing the election of directors. The claim of the Attorney General is that at the meeting of the stockholders for the election of directors, the right of choosing the inspectors or judges of the election was vested in the stockholders; while the defendants claim that the right was vested in the directors. We think the position of the Attorney General is correct; and that the directors in assuming that function against the will of the stockholders present, mistook their duty and exercised a function not warranted by law. The election, therefore, which they undertook to hold is invalid. The election held under the authority of the stockholders was legal; and the persons declared elected at the election last named, having been duly qualified, were entitled, under the statute, to hold the office until their successors were elected and qualified. The pleadings show no subsequent election.

Judgment of ouster rendered against the defendants; and the persons chosen as directors at the election last mentioned adjudged entitled to the office under such election.

[This case will appear in 37 O. S.]

SUPREME COURT OF OHIO.

ELIAS THORNE

V.

FIRST NATIONAL BANK OF WILMINGTON.

November 8, 1881.

An instrument in the form of a warehouse receipt, executed by a debtor to his creditor, on property owned by the debtor, who is not a warehouseman, for the sole purpose of securing such creditor, is void as against other creditors, where the property remains in the possession of such debtor. Gibson v. Chillicothe Bank, 11 Ohio St. 311, distinguished.

Error to the Court of Common Pleas of Clinton County. Reserved in the District Court.

In 1876, Elias Thorne brought suit in the Court of Common Pleas of Clinton County, against the First National Bank of Wilmington. The cause was submitted to a jury, on the petition, answer and evidence, and a verdict was found in favor of the defendant, and, after a motion for a new trial had been overruled, judgment was rendered on the verdict. All the evidence is set forth in a bill of exceptions, which is made part of the record. The material facts are as follows:

In 1871, S. M. Thorne, J. C. McMillan and J. H. McMillan formed a partnership and engaged in the business of slaughtering hogs and packing pork, under the firm name of Thorne, McMillan & Co. The business was carried on at Wilmington, Clinton county, and the partnership continued until the spring of 1874.

On November 6, 1873, Elias Thorne loaned to the firm $2,600, on December 3, 1873, $2,600, and on December 22, 1873, $8,000, to be used generally in their business. The first two loans were at sixty days and at the expiration of that time they were extended, and the last loan was at ninety days. It was understood, when these loans were made, that security for their repayment was to be given, and at the time the last sum was advanced, H. T. Davis became surety for that sum. As further security for the repayment of that sum, the firm executed and delivered to Elias Thorne, at the time the money was advanced, a certain instrument in writing, and on December 25, 1873, the firm executed and delivered to him another instrument as security for the payment of the sums first mentioned, which instruments are in the following form.:

thou

"Wilmington, Dec. 22nd, 1873. "We have received from Elias Thorne, of "Skaneateles New York, on storage, six "sand hams in process of curing, which we hold "subject to his order, and to be delivered to him "free of expense of curing, on presentation of "this warehouse receipt, on which we have re

ceived an advance of (88,000) eight thousand "dollars; said hams stored in our porkhouse, "Wilmington, Clinton County, Ohio, in casks "marked E. Thorne."

"THORNE, MCMILLAN & Co." "Attest: H. T. DAVIS."

"THORNE, MCMILLAN & Co."

S. M. Thorne, after testifying that the sum of $8,000, was advanced to the firm by Elias Thorne, on December 22, 1873, at a bank in Wilming ton, says: "We came out of the bank, and Elias Thorne and myself went directly to the porkhouse, and I delivered the hams to him." Witness was told to state what was said and

done, and he proceeded as follows:] "I pointed out the hams to him; they were on the first floor, and mostly in hogsheads, some in the front room, but most in the back room-100 hogsheads something over 100,000 pounds; I pointed to the hams, and said to him, 'I make you a delivery of the hams;' I also said, 'I will mark them for you;' he replied, "That is all right;' I marked some that afternoon and some more the next day, by marking on the hogsheads, in chalk, plainly, E. Thorne.' When I said I would mark them, and he replied All right,' he added that I could do so at some other time, as he was in a hurry. In the afternoon of that day I marked some of them by writing the name E. Thorne' with chalk, and the next day I marked some more the same way, in all a half dozen or a dozen of the outside casks. The casks or hogsheads were all in the main part of the building. All the hams embraced or mentioned in the warehouse receipt were separate and apart from all other hams and meats in the house. A few days afterward, and while he was still here in Wilmington, we gave him another receipt to cover what we called the five-thousand-dollar loan; it was the receipt which has been offered in evidence, bearing date, Dec. 25th, 1873."

เ

In February and March, 1874, without the knowledge or consent of Elias Thorne, the hams were shipped by the firm to Pittsburgh, where they were sold, and the proceeds of the sale, 87, 025.32, were applied by the firm in satisfaction of money due from the firm to that bank. This debt to the bank existed at the time such ware

house receipts were given. The suit was brought to recover the money so received by the bank. The firm was never engaged in the business of warehousemen.

The court charged the jury, among other things, that if it appeared that the papers called warehouse receipts were in fact given by the firm to Elias Thorne "simply by way of security for a loan of money made by him to them, and not otherwise," then that the bank, which was a creditor of the firm at the time, was not liable. L. Pope and J. S. Savage, for plaintiff in er

ror.

Hoadly, Johnson & Colston, W. B. Telfair, and M. Hayes, for defendant in error.

OKEY, J.

The verdict was right unless the charge was wrong. But the charge, as we shall see, was right. Clearly the hams were not held by Elias Thorne in pledge, for, to constitute a pledge, he must have received and retained possession of the property. Nor was this, as against the bank, a valid deposit by a bailor with a bailee, for the reason hereinafter stated. Nor, as to the bank, which does not claim under the instruments executed to Elias Thorne, were such iustruments warehouse receipts, for the firm was not engaged in the business of warehousemen, and the property belonged exclusively to the firm.

There is nothing in the statutory provisions relating to warehouse receipts, in force in 1873 and 1874, which affects the question before us. 1 S. & C. 420-424; S. & S. 93, 94. In several states, however, and in England, the rights, duties and liabilities of persons with respect to such instruments, are regulated by statutes, and in construing those statutes, the courts have considered the general subject. See Cochran v. Ripy, 13 Bush, 495; Sexton v. Graham, 53 Iowa, 181; Price v. Wisconsin, etc. Ins. Co. 43 Wis. 267; Sewing Machine Co. v. Heller, 44 Wis. 265; Insurance Co. v. Kiger, 103 U. S. 352; Harris v. Bradley, 2 Dillon, 284; McCabe v. McKinstry, 5 Dillon, 509; Yenni v. McNamee, 45 N. Y. 614; Adams v. Merchants National Bank, 19 Am. L. Reg. N. S. 714; Greenleaf v. Dows, 12 Reporter, 545; Johnson v, Roe, 10 Central L. Jour. 328. See, also, Edwards See, also, Edwards on Bail. (2nd ed.) §§ 332, 333; 10 Cen. L. Jour. 421; Daniel on Neg. Inst. SS 1713, 1714; Benj. on Sales, (2 Am. ed.) §§ 780, 781. The conclusion already stated, that the instruments in question are not warehouse receipts, was reached after a careful examination of these authorities.

The claim that, in so holding, the decision is inconsistent with Gibson v. Chillicothe Bank, 11 Ohio St. 311, is not well founded. In that case, as in this, the instruments claimed to be warehouse receipts were not such receipts, strictly speaking. But in that case it was claimed that Gibson, Stockwell & Co., to whom the receipts were given, were the owners of the property, and evidence was offered to show such ownership. The true ground of that decision appears in the statement of the judge delivering the opinion, that the papers called warehouse receipts were given, "not to secure an indebtedness merely,

but on the contrary, that the plaintiffs, under a previous and subsisting contract, furnished and advanced the money for the purchase of the property, upon an agreement on the part of Bartlett & May to so pass to them the title thereto." The court below charged the jury that the receipts did not even tend to prove such ownership of Gibson, Stockwell & Co., and in so charging clearly erred, and for that error the judgment was properly reversed. To that extent we fully recognize the case as authority. But in this case it is not pretended there was any agreement whereby Elias Thorne became owner of the property. Indeed, there was no

proposition on the part of the firm to give, nor on the part of Elias Thorne to receive, a lien upon or interest in the property now claimed to have been embraced by the receipts, until all the property had been purchased by the firm nor until such property had come to its possession, and, for aught that. appears, payment therefor had been made.

The instruments not being as to third person's warehouse receipts, the question arises as to the interest Elias Thorne acquired in the property. We do not doubt that as to persons other than creditors of the firm, and subsequent purchasers and mortgagees in good faith, Elias Thorne acquired an interest in the hams. But the only But the only interest he attempted to acquire was under those receipts, the acts called a delivery of the property having reference solely to perfecting his title under such instrument. The bank, however, was then a creditor of the firm. The statute in force at the time provided, "That every mortgage or conveyance, intended to operate as a mortgage of goods and chattels, hereafter made, which shall not be accompanied by an immediate delivery, and followed by an actual and continued possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be forthwith deposited as directed in the succeeding section of this act." 1 S. & C. 475; Rev. Stat. § 4150. In this case the place of deposit would have been the office of the township clerk. 3 Sayler, 2219.

Here was an attempt to create,.by the instruments in question, a lien on the hams to secure the debt of Elias Thorne. There was no change of possession, much less a continued change of possession. There was no execution of a chattel mortgage on the property, much less a filing of such mortgage with the township clerk. The attempt was, therefore, within the inhibitions, and in conflict with the policy of the above section, and the lien so attempted to be secured was, as to the bank, a creditor of the firm, simply a nullity.

Another view of this case may be taken, equally satisfactory to all of us, and leading to the same result. Whether the bank, at the time it received the proceeds of the sale of the hams in payment of its debt, had knowledge that Elias Thorne held the alleged warehouse receipts, is a question concerning which the evidence is in direct conflict. The verdict, in view of the charge to the jury, is virtually a finding that the bank did not have such notice. finding of a jury can only be disturbed when it appears from the evidence to be clearly wrong (McGatrick v. Wason, 4 Ohio St. 566, 575), and that we cannot say is shown by the evidence in this case. Elias Thorne having permitted the firm to retain the possession and control of the property, the firm sold it and paid the proceeds of the sale to the bank, which was one of its creditors, and, we are bound to say, ignorant of

The

the fact that Elias Thorne had or claimed any lien upon or interest in the property. That a bailor has, ordinarily, a remedy against a person who has converted his property to his own use, is not denied. Roland v. Gundy, 5 Ohio 202; Knapp v. Hobbs, 50 New Hamp. 476. But where a bailee, in violation of his trust, sells the property of the bailor, and applies the proceeds in payment of his (the bailee's) debt to a third person, who was ignorant of the breach of trust, the bailor cannot maintain, against such third person, an action for money had and received. Kingsley v. Plimpton, 17 Pick. 159; Thatcher v. Pray, 113 Mass. 291; Culver v. Bigelow, 43 Vt. 249; Foster v. Green, 7 Hurl. & Nor. 881. In this view the verdict is right, even if the instruments relied on should be regarded strictly as warehouse receipts.

Judgment affirmed.

[This case will appear in 37 O. S.]

Digest of Decisions.

NEW YORK.

(Court of Appeals.)

WINCH V. THE MUTUAL BENEFIT ICE Co. Decided October 4, 1881.

Contract-Damages-Interest.-By the terms of a contract, defendant agreed to deliver and plaintiff to take a certain quantity of ice per year for five years at a stipulated price; one dollar being fixed as liquidated damages for each ton which either party respectively might fail to deliver or take. In 1873, at defendant's request, plaintiff omitted to take the specified quantity. In an action for a breach, Held, That the request operated as a release of plaintiff's agreement; that defendant was not entitled to recover the liquidated damages for such omission nor justified in failing to deliver the contract quantity for the following year, and that plaintiff was entitled to recover for the amount defendant so failed to deliver.

The contract provided for yearly settlements. Held, That plaintiff was entitled to interest on the damages of each year from the end of the

year.

KECK ET AL. v. WERDER. GRAY, ASSIGNEE. Decided October 4, 1881.

Appeal-Bankruptcy-An order denying a motion to set aside a valid judgment for a mere irregularity or for fraud or collusion is discretionary and not appealable to the Court of Appeals.

If an assignee in bankruptcy does not seek to come in and defend an action while the same is pending, but through laches or even excusable neglect omits to apply until after judgment has been rendered and executed, it is discretionary with this court, on a summary application, to