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Opinion of the Court.

plied, as it is, to constructive notice of suits-is a recognition of this.

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The trial court was of the opinion that the question turned upon whether "Guilfuss" and "Geilfuss" were idem sonans, and held that since "Geilfuss" is evidently a German name the first syllable must be pronounced with the long sound of "i," while the first syllable of "Guilfuss' would necessarily be pronounced with the short sound of "i." The court therefore concluded that the names were not idem sonans, and that the difference was fatal. The Supreme Court agreed that "Geilfuss" and "Guilfuss' were not idem sonans, but held that this was not the proper test; that where a summons is served by publication, the true test is not whether the names sound the same to the ear when pronounced, but whether they look substantially the same in print (following Lane v. Innes, 43 Minnesota, 137, 143; D'Autremont v. Anderson Iron Co., 104 Minnesota, 165); and assuming that the name of the judgment creditor of McKinley was Albert B. Geilfuss, Assignee, the court said: "The question then is, placing the names 'Albert Guilfuss, Assignee,' and 'Albert B. Geilfuss, Assignee,' in juxtaposition, was there so material a change as to be misleading?" This was answered in the negative.

Were we to theorize, we might say that while each of these tests is helpful, neither is altogether acceptable if perfect accuracy were the aim; not the test of idem sonans, because it does not appear that all persons would necessarily pronounce Geilfuss with the long "i," or Guilfuss with the short "i"; and not the test of the appearance of the names as printed and placed in juxtaposition, because in fact, as the name appeared in the summons published and mailed, it was "Guilfuss" alone, without any name in juxtaposition to serve as a standard for comparison. And we think both tests are inadequate if applied without regard to what was contained in the summons besides the mere name and addition—“Albert Guilfuss, As

Opinion of the Court.

signee." The record, as it happens, contains no copy of the summons; but from findings and admissions that are in the record, we know that it was in due form, and therefore that it contained such notice of the commencement of the action and of its purpose, and such warning to appear and answer, as would constitute due process of law if served upon a defendant within the jurisdiction (Minnesota Stats., 1894, §§ 5194, 5195); and that it contained, inter alia, a brief description of the property sought to be divided (Minnesota Stats., 1894, § 5773, marginal note, supra). The underlying question is a practical onewhether, notwithstanding the misnomer, the summons as published and mailed, being otherwise unexceptionable, constitutes a substantial compliance with the Minnesota statute and sufficient constructive notice to the party concerned. In determining this, we need not confine ourselves to the test of idem sonans, nor to the appearance of the name in print, but may employ both of these, with such additional tests as may be available in view of what is disclosed by the record. One such additional test, we think, is whether, when two letters reached the postoffice at Milwaukee, one addressed "Albert Guilfuss, Assignee," the other addressed "Albert B. Guilfuss," they or either of them would, in reasonable probability, be delivered to Albert B. Geilfuss, then a resident of that city. Another is, whether, assuming that the summons as so mailed, or as published in Duluth, and containing the misspelled names or either of them, had come to the eye of the veritable Albert B. Geilfuss, or of any person knowing him by that name and sufficiently interested in him to acquaint him with its contents if apprised that it was intended for him, the summons, as a whole, would probably have conveyed notice that Albert B. Geilfuss was the person intended to be summoned. Both of these questions are, we think, to be answered in the affirmative. In view of the well-known skill of postal officials and employés

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Opinion of the Court.

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in making proper delivery of letters defectively addressed, we think the presumption is clear and strong that the letters would reach-indeed, that they did reach—the true Albert B. Geilfuss in Milwaukee. And it seems to us that any person knowing him, and knowing the correct spelling of his name, and having reason to acquaint him with the contents of a notice of this character if supposed to be intended for him, would probably realize for whom such notice was intended, notwithstanding the name was spelled "Guilfuss." The general resemblance between the names is striking, however they are to be pronounced. And the designation, "Assignee," was an additional means of identification. That Geilfuss himself, upon receiving the notice, would be sufficiently warned that it affected his interest in the Minnesota lands under his judgments against McKinley, is free from doubt. He would of course observe the misnomer; but, having received the notice which it was the purpose of the law to convey to him, he could not safely ignore it on the ground of the mistake in the name, any more than, if personally served with summons within the State of Minnesota, he could have ignored it on account of a similar misnomer.

We conclude that there was due process of law in the partition suit, and that therefore the present judgment should be affirmed.

Judgments in Nos. 325 and 326 affirmed.

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Statement of the Case.

DALE v. PATTISON.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.

No. 330. Argued April 23, 1914.-Decided June 8, 1914.

The legal effect of a transaction involving pledge or hypothecation depends upon the local law; and if the state law permits the pledged property to remain under certain conditions in the possession of the pledgor and those conditions exist, the trustee in bankruptcy of the pledgor takes subject to the rights of the pledgee. Taney v. Penn Bank, 232 U. S. 174.

There is a well-recognized distinction between a chattel mortgage and a pledge; and a state statute requiring the delivery of the chattel or recording of the instrument does not necessarily apply to a pledge of personal property so situated that it is not within the power of the owner to deliver it to the pledgee.

Where property is from its character or situation not capable of actual delivery, the delivery of a warehouse receipt or other evidence of title is sufficient to transfer the property and right of possession. Gibson v. Stevens, 8 How. 384.

Notwithstanding §§ 8560 and 8619, General Code of Ohio, the law of that State recognizes the force of long continued commercial usage and the effectiveness of a symbolical delivery of personal property by the transfer of warehouse receipts representing the same.

Where neither statutes nor decisions of the courts are directly to the contrary, the courts may refer to established trade customs as evidence of what has been long understood to be the law. Gibson v. Stevens, 8 How. 384.

The law of Ohio not being dissimilar from that of Pennsylvania in recognizing the validity of transfers by delivering warehouse receipts representing property under conditions similar to those involved herein, this case is controlled by Taney v. Penn Bank, 232 U. S. 174. 196 Fed. Rep. 5, affirmed.

DAVID ROHRER, for many years prior to November 5, 1909, owned and operated a distillery in Montgomery County, Ohio. On that day he was adjudicated a bank

Statement of the Case.

rupt, and the appellants were appointed his trustees. In the following month they filed an application in the bankruptcy proceedings setting forth that in the distillery warehouses of the bankrupt there were stored about 9,800 barrels of Bourbon and rye whiskies, to which there were many conflicting claims; among the claimants being certain named persons to whom it was alleged the bankrupt had pledged or hypothecated certain barrels of the whiskies. One of the parties so named was the respondent, Edward M. Pattison. The application prayed that all of the claimants be notified of the proceedings, be made parties thereto, and be required to set up their respective claims. Pattison filed an answer and intervening petition, claiming that 210 barrels of whiskey (specifying them by numbers), were a part of a lot of 800 barrels that had been pledged or hypothecated to him by Rohrer as security for certain loans; the remainder of the 800 barrels having been sold by Rohrer without the knowledge of Pattison. It was denied that the whiskies were or ever had been in Rohrer's possession, it being alleged that all of them, as soon as manufactured, were placed in the storage warehouse in the possession and control of the Government of the United States, and that certain moneys were loaned by Pattison to Rohrer, to secure payment of which the latter assigned and transferred in writing to the former his entire interest in certain designated barrels of whiskey then on storage in said warehouse, the agreement and transfer being evidenced by documents in the form of warehouse receipts, of which the following is a sample: "No. 750. "Stored in Warehouse. "56 bbls. in No. 2. "94 bbls. in No. 1.

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"The David Rohrer Distillery, Montgomery County. "Fire Copper Bourbon and Pure Rye.

"Brand and Distillery Established in 1847.

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