prosecutor made the defendant a bailee within the contemplation of the Act of Assembly. The Act of 31 March, 1860, Section 108, P. L., 409, provides, "if any person being a bailee of any property, shall fraudulently take or convert the same to his own use*** he shall be guilty of larceny, etc." The Supreme Court in the case of Commonwealth vs. Chathams, 50 Pa., 181, first defined what the word bailee as used in this Act means. The Court below held that it was not to be used in its general sense, but meant common carriers only. This was held by the Supreme Court to be a too narrow construction, and the Court below was reversed. In delivering the opinion of the Court Justice Read says that as the act is founded on the English Statutes the construction placed upon the word by the English Courts should be our guide. After a full and careful examination of them, citing and quoting from many of them, he concludes that it means any person who has possession of property under a contract of bailment. In Commonwealth vs. Krause, 93 Pa., 418, the Supreme Court followed the Chathams case. In delivering the opinion of the court Justice Trunkey says, "Our statute, as shown by Read, J., in Commonwealth vs. Chathams, 14 Wright 181, is taken from the English statute; and in that case the interpretation of the words bailee and bailment, as fixed by the English decisions, was adopted, which decisions were cited, showing that the words must be interpreted according to their ordinary legal acceptation, that bailment relates to something in the hands of the bailee, which is to be returned in specie, and does not apply to the case of money in the hands of a party who is not under any obligation to return it in precisely the identical coins which he originally received; that to bring a case within this clause, in addition to the fraudulent disposal of the property, it must be proved: First, That there was such a delivery of the property as to divest the owner of the possession, and vest it in the prisoner for some time; Secondly. That at the expiration or determination of that time the same identical property was to be restored to the

owner. "The term bailee is one to be used, not in its large but in its limited sense, as including simply those bailees who are authorized to keep, to transfer, or to deliver, and who receive the goods bona fide, and then fraudulently convert. Where it does not appear that a fiduciary duty is imposed on the defendant to return the specific goods of which the alleged bailment is composed, a bailment under the statutes is not constituted: Whart. Crim. L., sec. 1855 (8th ed.)" It was also held in this case that where the goods were sold and delivered to the vendee under the contract of sale. vendor to retain title until paid for, when it was to pass to the vendee, there was no such bailment as is contemplated in the act.

According to the contract between the parties in this case the defendant had possession of the property in question under the lease. He agreed to take it as lessee; he agreed to pay the rental fixed for the term mentioned in the lease, namely, ten months, and then to return it to the lessor in as good cond:tion as it was when he received it except for reasonable wear. If this were al the contract between them no question could be raised but that the contract was one of bailment and that the defendar: was a bailee of the property. But there is another or additional agreement in the lease to the effect that when the defendant has complied with all the conditions imposed upon him by the lease, the owner agrees to sell the property to hi This it is contended makes the agreement a conditional sale, and the defendant is consequently not such a bailee as can be convicted under the act.

The objection to this contention is that the defendant did not take or hold possession of the team under the agreement of sale. Such agreement was only to be effective after all the conditions of the lease had been complied with by the defendant, that is, after it had expired, and the property had been returned to the prosecutor, and only then could the defendant have taken possession of it under the agreement of sale. This time, however, never arrived, as the defendant dif not perform all the conditions which the

fore, retained possession of the property in question as the lessee of the prosecutor, and was a bailee within the meaning placed upon it by the Supreme Court in the cases above cited. The cases are numerous that where possession of personal property is taken under a contract of lease or other bailment contract, the mere fact that there is a superadded executory agreement for the sale of the property to the bailee upon the payment of a certain price during or at the expiration of the bailment, does not convert the bailment into a sale, and until the execution of the contract of sale the title remains in the bailor even as against the bailee's creditors: Furguson 7's. Lauterstein, 160 Pa., 427; Cincinnati Co. vs. Strang 215 Pa., 475; American Car Co. vs. R. R. Co., 218 Pa., 519; Scale Co. vs. Schetrompf, 13 Sup. 377; Harris vs. Shaw, 17 Sup., I; Miller vs. Douglas, 32 Sup. 158, are some of the more recent cases to this effect.

Being of the opinion that the prosecutor was the owner of the property in question, and that the defendant was a bailee of it within the contemplation of the Act of Assembly, and that he fraudulently converted the same to his own use, we think he was properly convicted, and discharge the rule for a new trial.

Common Pleas--Law.

C. P. OF LANCASTER COUNTY.

Keller vs. Longenecker.

Chattels Transfer of title-Possession -Mother and son-Execution-Constructive fraud.

There has been no deviation from the general rule that delivery of possession is indispensable to transfer a title to chattels that shall be valid against creditors. What is a sufficient delivery of possession varies however with the circumstances of the case.

Where a family relation exists between the vendor and vendee there need be no visible change of possession of chattels used by them in common in the house in which they live; but this is not the case where the property

is not so used.

A bill of sale to his mother with whom he lived will not prevent the taking of an auto

The plaintiff in an interpleader issue, who has given bond and taken the goods is entitled to have their value ascertained by the verdict.

October Term, 1909. No. 23.

Rules for a new trial and for judgment for defendant n. o. v.

Coyle & Keller for rules. John E. Malone contra. April 16, 1910. Opinion by HASSLER, J.

This is an interpleader issue to try the title to certain personal property claimed by the plaintiff, which was levied upon as the property of I. G. Keller, by virtue of an execution issued at the instance of the defendant: The plaintiff gave bond and took possession of the property which consisted of some machinery and appliances used in the factory operated by the plaintiff and I. G. Keller as partners, and an automobile. We think the plaintiff was entitled to a verdict as to the machinery and appliances, but we should have affirmed defendant's point asking for binding instructions for the defendant, as to the automobile.

The plaintiff claimed the automobile by virtue of a bill of sale. The execution defendant was her son and lived with her. There was no change in the visible possession of the automobile after the sale, nor any evidence of delivery. It was kept at the same place as before, and used and controlled to all appearances, according to the testimony, by the defendant in the execution after the sale. Thinking the relations of the parties, being of the same family and living in the same house, were such circumstances as made any open, notorious and visible change of possession unnecessary to pass title as against the vendor's creditors, we instructed the jury that such change was not necessary, and left the question of the bona fides of the sale to them. In this we now think we erred.

The rule as originally laid down requiring a delivery of personal property

to the vendee so that a sale will not be construed to be fraudulent as against

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the vendor's creditors has been clearly relaxed. In White vs. Gunn, 205 Pa., 229, Justice Brown says, When we said in Keystone Watch Case Co. vs. Fourth Street National Bank, 194 Pa., 535, that the rigor of the rule as laid down in Clow vs. Woods, 5 S. & R., 275, which requires the purchaser of personal property to take and retain possession of it, had been greatly relaxed, we did not say, nor intend to say, that the rule itself is not still the law. It is as true now as it was when the rule was announced in that case, nearly a century ago, that, if a purchaser pays the price for goods purchased by him, without taking possession of them, he takes the risk of the integrity and solvency of his vendor when the rights of a subsequent bona fide purchaser or an execution creditor arise: Stephans vs. Gifford, 137 Pa., 219. Less than a year ago we said, 'There has been no deviation from the general rule that delivery of possession is indispensable to transfer a title by the act of the owner that shall be valid against creditors: Barlow vs. Fox, 203 Pa., 114. What, however, would be a sufficient delivery of possession and retention of it in one case might not be in another; and in saying that the rigor of the rule requiring the purchaser to take and keep possession of property purchased by him has been relaxed, nothing mo e was meant than that the law does not have or set up an unbending test of the sufficiency of delivery and retention of possession to be applied to all cases, but that, in passing upon the sufficiency of possession taken by the purchaser in any particular case, there must be taken into consideration the character of the property, the use to be made of it, the nature and object of the transaction, the position of the parties and the usages of trade or business: Crawford vs. Davis, 99 Pa., 576; Renninger vs. Spatz, 128 Pa., 524; Stephans vs. Gifford, supra; Goddard, Hill & Co., vs. Weil & Co., 165 Pa., 419; McCullough vs. Willey, 200 Pa., 168. When a purchase is made in good faith, the fair and honest purpose of the vendor and vendee will not be defeated, if the conduct of the parties shows that there

was an intention to transfer the possession as well as the title and the vendee assumes such control of the property as ought reasonably to indicate a change of ownership."

Since the rule requiring delivery has been relaxed, in the manner and for the reasons above stated, it has been held that where the family relation exists between the vendor and the vendee there need be no visible change of possession of chattels used by them in common; in the house in which they live, to vest a good title in the vendee as against the vendor's creditors: Stoy vs. Dobson, 15 Sup., 326, and cases therein cited. This does not apply, however, where the property is not so used, but is kept outside of the house, for there there must be some evidence of change of ownership to give notice of it. Thus in Lehr vs. Brodbeck, 192 Pa., 535, it was held that where a brother and sister lived together, and the sister buys the farming implements and farm stock, change of ownership must be made manifest in some way or the sale is constructively fraudulent as to the brother's creditors. In delivering the opinion of the court Justice Dean says, "The purpose of the sale seems not to have been to hinder, delay or to defraud the brother's creditors, but to prefer her as a creditor. But there was no change of possession, such as the property was capable of, following the sale, either actual or symbolical. True, the brother was not required to separate from his sister and leave the farm, se that she could remain in the exclusive possession of the property; but he could have withdrawn from the control of it; could have surrendered the keys of the barn to her; both or either could have, in some public manner manifested the change of ownership which had taken place. But to all outward appearances, his ownership remained the same as before; there was no break in the possession, real or ostensible. As to creditors, therefore, the sale was constructively fraudulent, under all the authorities from Clow vs. Woods, 5 S. & R. 275, down to Pressel vs. Bice, 142 Pa., 270.'

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In Huffman vs. McIlvaine, 13 Sup. 108, the Superior Court decided that a

Orphans' Court.

O. C. OF LANCASTER COUNTY.
Estate of Dana Graham, Deceased.
Family settlement-Exceptions.

A family settlement agreed upon and carried out by those interested will not be interfered with at the instance of a petitioner who subsequently obtained an interest but failed to file exceptions to the account when the opportunity to do so was presented.

November Term, 1909. No. 4. Rule to file account. John E. Snyder for rule. Redmond Conyngham contra. May 16, 1910. Opinion by SMITH, P. J.

On the petition of Mary E. Graham, purchaser of the interest of her husband, Dana H. Graham, in the estate of the deceased, this rule was allowed.

The account of John S. Graham, surviving executor of the will of Dana Graham, deceased, was exhibited October 5, 1909. No exceptions were filed to it. When it was called for audit it was noticed that the usual method of charging the amount of the inventory had not been adopted. To this counsel representing the petitioners expressed disapproval, also deplored that the time had elapsed in which to file exceptions, whereupon counsel for accountant voluntarily and unconditionally offered to waive all rules and submitted that exceptions be then filed, declaring that he had no disposition to take any technical advantage. At the same time he proposed a continuance that petitioner and her counsel might have an opportunity to examine all matters, offering to submit the data on which the account was founded. Thereupon it was agreed that unless petitioner's counsel on or before Thursday, November 18th, after having examined the evidence, considered it advisable or desirable to file exceptions, the audit would be closed as of that date, Monday, November 15th. Counsel for accountant reported that he had submitted to petitioner and her counsel all papers and memoranda. Petitioner's counsel made no report and filed no ex

ceptions. A decree of distribution was entered December 16, 1909. About three weeks later the petitioner filed a statement in the form of an exception to it, but, which being irrelevant, was formally dismissed and the decree was confirmed.

About the same time the petition was presented, alleging substantially the same as the statement, which wholly related to the subject of the inventory as originally introduced. The petition concludes:

"She therefore prays that a decree be made by the Honorable Court, directing the said John S. Graham, executor of the Will of Dana Graham, to file a further account accounting for the said sum of $19.575.94, the amount of the Inventory and Appraisement filed by him as hereinabove set forth, and that until such account is filed and confirmed, and an adjudication thereon entered and filed by the Court, that payment of the amount awarded to the said John S. Graham in the adjudication filed December 16, 1909, as hereinabove set forth, be suspended and withheld, or until such further time as the Court may decree.”

The accountant among other things in his answer avers: "that said account included all the property of said estate, and denies that any personal estate included in the inventory is not embraced by the account. He avers this to have been conceded and agreed to by said petitioner after a formal examination and investigation and under the advice and supervision of her counsel."

The proofs submitted fail to show that any more is due the estate than the balance in the account. By a "family settlement", prepared by Judge Landis before going on the bench, it appears that large sums were paid out for the estate between April 24, 1888, and December 1, 1897, apparently more than the aggregate of the inventory.

The making of this rule absolute would result only in prolonged litigation and the depletion of the estate, injurious to all and also distressing to all, except the petitioner, who approve what has been done by the acountant and reaffirm their acceptance of a family settlement