vendee took an absolute bill of sale to take effect immediately by the face of it, and agreed to leave the goods in the possession of the vendor for a limited time, such an absolute conveyance without the possession, was such a cirumstance per se as made the transaction fraudulent in point of law. It was admitted, however, that if the want of immediate possession be consistent with the deed as it was in Buckland v. Roiston, and Lord Cadogan v. Kennet, and as it is if the deed be conditional, and the vendee is not to have possession until he has performed the condition, the sale was not fraudulent, for there the possession accompanied and followed the deed within the meaning of the rule.

After the English rule on this subject had been discussed, declared and settled, it was repeatedly held, that an absolute bill of sale of chattels, unaccompanied with possession, was fraudulent in law, and void as against creditors. The change of possession was required to be substantial and exclusive, and not concurrently with the asguor, But, on the other hand, there have been many exceptions taken, and many qualifications annexed to the general rule; and it has become difficult to determine when the circumstance of possession not accompanying and following the deed, be per se a fraud in the English law, or only presumptive evidence of fraud, resting upon the facts to be disclosed at the trial. It certainly is not any thing more if the purchaser was not a creditor at the time, and the goods were under execution, and the transaction notorious, and not, in point of fact, either clandestine or fraudu lent.

In Kidd v Rawlinson,b goods were purchased on execu, tion by a stranger, and left in possession te debtor for

a Paget v. Perchard, 1 Esp. N. P. Rep 205. Wordall v. Smith, 1 Campb. N. P. 332.

b 2 Bos. & Pull. 59.

a temporary, and honest, and humane purpose, and as the parties did not stand in the relation of debtor and creditor, Lord Eldon, as Ch. J. of the C. B. held, that the title was in the vendee. He admitted, that a bill of sale of goods might be taken as security on a loan of money, and the goods fairly and safely left with the debtor. The decision in this case was conformable to one made by Lord Holt under similar circumstances ;" and Lord Eldon, many years afterwards, when Lord Chancellor, adhered to the same. doctrine, and declared, that possession of chattels by the vendor was only prima facie evidence of fraud. If the property cannot be reached by bankruptcy, and the possession be according to the deed which creates the title, and the title be publicly created, it is not fraudulent. Other cases have protected the purchaser of goods seized on execution, (and whether the purchase was from the sheriff or the defendant seemed to be immaterial,) from subsequent executions, though the goods were suffered to continue in the possession of the defendant, on the ground that the transaction was necessarily notorious to the whole neighbourhood, and the execution notice to the world, and the cases being free from fraud in fact, were, under those circumstances, free from the inference of fraud in law. The question of fraud in such cases is declared to be a question of fact for the jury. The purchaser of goods sold at auction, by trustees, under an assignment by an insolvent debtor, is also protected, though he leave the goods in the possession of the prior owner, provided it be a matter of fact to be found by a jury, that the assignment was not made with a fraudulent intent, and that the sale was notorious.d

a Cole v. Davies, 1 Lord Raym. 724.

b Lady Arundell v. Phipps, 10 Vesey, 145.

c Watkins v. Birch, 4 Taunton, 823. Joseph v. Ingram, 8 ilid. 838, Latimer v. Batson, 4 Burn. & Cresw. 652.

d Leonard v. Baker, 1 Maule & Selw, 251.

So, a person may lend his goods for another's use, and, except in cases of bankruptcy under the statute of 21 J. I. hey will be protected from the creditors of the person for whose use they were supplied.a In Steward v. Lombe,b so late as 1820, the Court of C. B. even questioned very strongly the general doctrine in Edwards v. Harben, that actual possession was necessary to transfer the property in a chattel, and the authority of the case itself was shaken. The law on this subject is still more unsettled in this country than it is in England.

In the Supreme Court of the United States, the doctrine in Edwards v. Harben has been explicitly and fully adopted, and it is declared, that an absolute bill of sale is itself a fraud in law, unless possession accompanies and follows the deed.

This decision, of course, leaves open for discussion the distinction taken in that case between a bill of sale absolute, and one conditional upon its face, and also the conclusions in the other cases where the continuance of possession in the vendor is consistent with the deed. The principle of the decision at Washington has been adopted in the circuit courts of the United States, and we may consider it to be a settled principle in federal jurisprudence. In pursuance of the rule, if property be abroad, and incapable of actual delivery at the time, as in the case of a ship at sea, the possession must be assumed as soon as possible on the arrival of the vessel in port.d

In Virginia, the same principle has been directly and repeatedly adjudged to be well settled; and it is declared, that an absolute bill of sale of personal property, with possession continuing in the vendor, is fraudulent per se as to

a Dawson v. Wood. 3 Taunton, 256.

b 1 Brod. & Bing. 506.

c Hamilton v. Russell, 1 Cranch, 309.

d United States v. Conyngham, 4 Dallas, 358. Meeker v. Wilson, 1 Gallison, 419. Mair v. Glennie, 4 Maule & Selw. 240.

creditors without other evidence of fraud, or being connected with other circumstances." In South Carolina, the same doctrine was alluded to as being founded on the betfer authority; and in one case in equity it was decided, that if possession did not accompany a bill of sale of chattels which was not recorded, it was void as to creditors, though there was no doubt of the fairness of the transac tion.) Afterwards, in the Constitutional Court, the doctrine of the English law in Edwards v. Harben, was declared by all the judges to be a settled rule.d In Tennessee, also, the doctrine of the English law as stated in Edwards v. Harben, is clearly asserted. So, in Kentucky, the same principle, under the modifications it has subsequently undergone in England, seems to have been adopted; for after an absolute bill of sale, if the property remains in the possession of the vendor, it is held to be fraudulent, and evidence of a fair intent is inadmissible; and yet when such possession is not inconsistent with the sale, the fraud becomes a matter of fact for a jury.ƒ

*

In Pennsylvania, the English doctrine is adopted and followed in its fullest extent. The general principle is explicitly and emphatically recognised, that on an absolute sale or assignment of chattels, possession must accompany and follow the deed, and vest exclusively in the vendee, or it is fraudulent in law, though there be no fraud in fact. But as an exception to the general rule, it is admitted, that goods may, after they have been levied upon,

a Alexander v. Deneale, 2 Munf. 341. Munf 1.

Robertson v. Ewell, 3

b 3 South Carolin Eq. Rep. 229. Croft v. Arthur.

c De Bardeleben v. Beekman 1 South Carolina Eq. Rep. 346.

d Kennedy v. Ross, 2 Const. Court, 12

♦ Ragan v Kennedy, 1 Tenn. Rep. 91.

f Baylor v. Smithers, 1 Littell. 112.

g Dawes v. Cope, 4 Binney, 2.8. Babb v. Clemson, 10 Serg. & Rawle, 419.

or after a fair purchase of them at a sale on execution, be safely left in the possession of the defendant, without a necessary inference of fraud; though the exception in the case of a levy merely, was afterwards restricted to household furniture." Delivery of the goods is held to be as requisite in the case of a mortgage of goods, as of an absolute sale of goods under the statutes of 13 and 27 Eliz.; and merely stating on the face of the deed, that possession was to be retained, is not sufficient to take the case out of the statute, even in the case of a mortgage of goods; and the transaction has been adjudged to be fraudulent per se, and void against a subsequent bona fide purchaser without notice.) The just policy and legal solidity of the rule that holds all such deeds of chattels fraudulent in law, were asserted in the case to which I have last alluded, with distinguished ability and effect. The retention of possession must_not only be part of the contract, but it must appear to be for a purpose, fair, honest and necessary, or conducive to some fair object in view. Appearances must not only agree with the real state of things, but the real state of things must be honest and consistent with public policy. Such were the cases of Bucknel v. Royston, and Cadogan v. Kennet. But where the motive of the sale is the security of the vendee, and the vendor is permitted to retain the visible ownership for the convenience of the parties, it is a fraud, though the arrangement be inserted in the deed of mortgage. The policy of the law will not permit the owner of personal property to create an interest in another, either by mortgage or absolute sale, and still continue to be the visible owner. The law will not stay to inquire whether there was actual fraud or not, and will infer it at all events, for it is against sound policy to suffer the vendor to remain in possession, whether an agreement to that effect be or be not expressed

a Levy v. Wallis, 4 Dallas. 167. Waters v. M'Clellam, ibid. 20. Chancellor v. Phillips, ibid. 213.

b Clow v. Woods, 5 Serg. & Rawle, 275.