The case of Lewis v. McCabe, as pointed out above, appeared in 21 AMERICAN LAW REGISTER, 217-235, with an annotation, giving the condition of the law in most of the Courts of this country down to 1882. One of the editors of THE REGISTER, in the last edition of Benjamin on Sales (Bennett's edition, 1888, pp. 271-8), has furnished a convenient digest of the American cases on this subject, to a recent date, arranged by States. Cases decided since the publication of this edition are subjoined together with some of the State statutes commented on, and such older cases as are necessary to show the present condition of the law in this country.

In the United States Supreme Court, the decisions of Hervey v. The Locomotive Works, 93 U. S. 664 (1876), and Herryford v. Davis, 102 U. S. 235 (1880), have been followed in the cases arising from the foreclosure of the mortgages on the Chicago, Danville, and Vincennes R. R., 99 U. S. 235, 256, 258 (1878), and in Harkness v. Russell, 118 U. S. 663 (1886). In the latter case, the Court decidedly express the opinion, that the decisions supporting the Illinois doctrine "are few in number, compared with those in which it is held that conditional sales are valid and lawful, as well against third persons, as against the parties to the contract. *** But as the rulings of this Court have been, as we think, somewhat misunderstood, we have thought it proper to examine the subject with some care, and to state what we regard as the general rule of law, where it is not affected by local statutes or local decisions to the contrary:" per BRADLEY, J.

The Illinois docrine is very nearly in conformity with the English bankrupt law as interpreted by their Courts and is this: "If a person

agrees to sell to another a chattel, on condition that the price shall be paid within a certain time, retaining title in himself in the meantime, and delivers the chattel to the vendee so as to clothe him with the apparent ownership, a bona fide purchaser or an execution creditor of the latter is entitled to protection as against the claim of the original vendor :" BRADLEY, J. Harkness v. Russell, 118 U. S. 678, and citations. The immediate delivery of personal property, capable of such change of possession, is equally insisted upon where a purchase is made for cash paid: the vendor allowed to retain possession, can make a good title by delivery to a second purchaser for value, in good faith and without knowledge of the first sale: Gradle v. Kern, 109 Ill. (1884). See infra, II., for statute relating to railroad equipment.

Kentucky follows the Illinois doctrine, unless a lien is reserved. See infra, II.

The Maryland Court of Appeals (Lincoln v. Quynn et al., Jan. 6, 1888, per BRYAN, J.) said that twenty years had passed since Hall v. Hinks, 21 Md. 406 (1863), and this decision had been repeatedly approved in deciding "that a bona fide purchaser, without notice of the condition upon which his vendor has acquired the possession, will be protected against the claim of the original vendor, in the same manner where the sale and delivery are conditional as where the possession has been obtained by fraud." And this principle was then extended to a bona fide mortgagee without notice, but refused to one with notice.

In Pennsylvania there is no statutory regulation, and the same doctrine prevails as to sales. Wire Book Sewing Machine Co., Limited, v. Crowell, decided by the Supreme Court of that

State, January 17, 1887, adhered to the former decisions, holding that a contract to purchase a patented machine for notes, but no bill of sale to be given until the maturity of the notes, and if the notes should not be then paid, any payments on account to be considered rental and royalty, and the contract to terminate and the seller to resume possession, was a clear case of a conditional sale on credit. The provision intended to convert the contract into a bailment, if the purchase-money should not be paid, was insufficient to make it a bailment, ab initio, and possession having been given to the buyer, his creditor could seize and sell the machine, notwithstanding the fact that he knew the terms of the contract. In a previous case, the Court had pointed out that the test is uniformly a question whether the parties intended to leave the title in the seller as security for the price: this would be a conditional sale. If a bailment was really intended, though coupled with an agreement to sell, this would be valid even against the creditors of the buyers Appeal of Edwards et al., 105 Penna. St. 103 (1884); so, Dando v. Foulds, Id. 74 (1884); and Forrest v. Nelson, 108 Id. 481 (1885); all affirmed in Wheeler & Wilson Mfg. Co. v. Heil, 115 Id. 487 (1886).

Later in the same year, May 2, 1887, while deciding Wertz v. The H. W. Collender Co., the Court conceded "that the line is not sharply defined between the cases which hold that a chattel, held under a bailment and conditional sale, will be liable to execution, as the property of the bailee, and the other cases which declare that the property of the vendor shall not be so liable." Still, the Court was satisfied that a "letting" of a billiard table, rent paid in advance by notes, except a small cash payment at the

end of the term, possession delivered with agreement for recovery by seller on failure to pay any of the notes, and agreement to give a bill of sale when full payment had been made, was a bailment, good against the buyer's creditors.

In the latest reported case, the Court held the principle that retention of title is a fraud, was "too obvious and settled to allow of discus

sion:" Shaeffer v. Zech, May 25, 1888.

The Pennsylvania doctrine is founded upon the public policy adopted in that Commonwealth, and depends upon the possession and acts of ownership, exercised by the conditional vendee. No regard is paid by the Courts there, to the legal effect of the contract, or the place where it has been made. It is conceded that the property remains in the vendor, as between the parties and those having notice, but as to others possession under such a condition is considered a badge of fraud and the vendor's reserved title is not allowed to be asserted against not only bona fide purchasers from the vendee, but even his creditors. Hence, this doctrine is local and has no extra-territorial effect, and in another State the conditional contract will be construed according to the law of the situs: Marvin Safe Co. v. Norton, 48 N. J. Law, 410 (1886).

The other States and the Territories all start from the common basis of the validity of a conditional sale against any claims by the creditor of the conditional vendee, or any buyer from him, but, one by one, statutory notice is being required, varying in detail, as shown below. In all cases the sales are valid between the parties notwithstanding the statute.

I. Nine States and Territories require recording in some cases :—

Alabama ordains that ،، contracts for the conditional sale of railroad equipment or rolling stock, by the terms of which the vendor retains title until payment of the purchasemoney, and the purchaser obtains possession, are void against the judgment creditors of the purchaser without notice, or purchasers from him for a valuable consideration without ¡ notice, unless such contracts are in writing, and, within three months after the making thereof, recorded in the office of the judge of the probate of the county in which such corporation may have its principal office or place of business; and if it has not in this State a principal office or place of business, then in the office of the secretary of state; and, in addition, all cars or engines so sold must have thereon plainly marked the name of the vendor:" Code (1886), § 1821. Otherwise, conditional sales are valid, even against a bona fide purchaser for value and without notice : Fairbanks, Morse & Co. v. The Eureka Co., 67 Ala. 109 (1880), and Sumner v. Woods, Id. 139 (1880).

Arizona declares that "The following instruments of writing, which shall have been acknowledged or proved according to law, are authorized to be recorded, viz : all deeds, mortgages, conveyances, deeds of trust, bonds for title, covenants, defeasances or other instruments of writing concerning any lands and tenements, or goods and chattels, or movable property of any description, * * * and all deeds of trust and mortgages whatsoever, which shall hereafter be made and executed, shall be void as to all creditors and subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged or proved and filed * * * with the recorder ; but the same, as between the parties and

their heirs and as to all subsequent purchasers, with notice thereof, or without valuable consideration, shall nevertheless be valid and binding:" Rev. Stat. §§ 2601, 2602. There are no decisions upon this statute at hand, but it clearly does not apply to conditional sales by verbal contract.

In Arkansas, the sale of a chattel, with reservation of title until the purchase-money is paid, is valid against a second buyer for a valuable consideration without notice: McIntosh v. Beam & Hill, 47 Ark. 363 (1886); McRea et al. v. Merrifield et al., 48 Id. 160 (1886); Simpson et al. . Shackleford et al., S. Ct. Ark., April 9, 1887; unless the possession remains with the vendee for more than five years, without payment of the price: Deal v. Hecht, U. S. Circ. Ct. E. D. Arkansas, 1880; 5 Fed. Rep. 419 ; Digest of 1884, § 3377.

In Dakota, "where railroad equipment and rolling stock may have been or shall be sold to any person, firm, or corporation, to be paid for in whole or in part, in instalments, or shall be leased, rented, hired, or delivered on condition that the same may be used by the person, firm, or corporation purchasing, leasing, renting, hiring, or receiving the same, and that the title to the same shall remain in the vendor, lessor, renter, hirer, or deliverer of the same until the agreed upon price of or rent for such property shall have been fully paid, such condition in regard to the title so remaining in the vendor, lessor, renter, hirer, or deliverer, until such payments are fully made, shall be valid for all intents and purposes as to subsequent purchasers in good faith and creditors; provided, the term during which the instalments of rent are to be paid shall not exceed ten years, and such contract shall be in writing and acknowledged. Such contract