To constitute a bailment, neither payment for the use of the goods, nor a promise to return them is essential.

Semble, that when possession of chattels is transferred to the vendee, and the ostensible ownership reserved to the vendor for the purposes of security only, the condition, though good between the parties, is bad as to creditors; as to the latter the sale is absolute.

this is but a bailment, and the title to the property, even | Ward, on the writs of Stranghellan and others, as against creditors of the bailee, remains in the bailor. that they claimed the goods as their own, and If the bailee has paid part of the price, his interest in the thus denied the title of their tenant, their status goods may be taken in execution, but this will not affect as adverse claimants to those writs was fixed. the bailor's title. in this manner assumed; first, they put the sheriff Two things resulted from the position which they and the execution creditors in the position of trespassers, and imposed upon them the risk and Cost of maintaining Ward's title, from which necessity they would have been relieved had the appellants claimed but as landlords. Second, they disclaimed all interest in any fund that might arise from the sale, in that they denied their tenant's title in the goods levied upon; for necessarily their claim must be limited to the proceeds of the sale of the goods of the tenant, and not to the proceeds of the sale of their own goods, which sale was a proceeding adverse to their alleged right, and for the infringement of which they held the plaintiffs to an account in the whole value of the goods levied upon. How then, we ask, can they come in on the fund raised from a sale of these goods, claiming, as they do, adversely to the very writs on which that sale was made? We think that even without the authority of Bush's Appeal (15 P. F. S. 367) and Vetter's Appeal (3.Out. 52) we might venture to say this cannot be done.

An hotel was leased for five years. At the same time the lessor agreed "to furnish to the lessee, with the said hotel, under this lease, all the stock and furniture therein, and upon payment therefor, in full, to execute to him a bill of sale therefor, the title thereto to be and to remain in the lessor until the said payment." Under this agreement four thousand dollars had been paid on account of the price of the furniture:

Held, that the transaction amounted to a bailment only, and not a conditional sale, and that no title passed to the lessee which could be levied upon by his creditors.

Appeals, by Richard S. Edwards et al., from a decree of Common Pleas No. 4, of Philadelphia County, dismissing exceptions to the report of an Auditor appointed to distribute the proceeds

of a sheriff's sale.

Two writs of error to said Court in two feigned issues granted in the said suit.

The facts of these cases, the arguments of counsel, and the opinion of the Court below, by THAYER, P. J., are fully reported, sub nom. Stranghellan v. Ward, 13 WEEKLY NOTES, 111. From the decree of the Court the exceptants, who were also plaintiffs in the feigned issues, appealed, and took these writs, assigning for error: (1) The not awarding the fund in Court to appellants on their claim for one year's rent; (2) The not awarding the fund in Court to appellants as the proceeds of their own goods; and (3) the

But it is urged that these landlords were not bound to make choice between these two claims; they might pursue both, and if one failed they might resort to the other. That is, in plain English, they might both affirm and deny their own title; claim under the writs or adversely to them; might hold the plaintiffs in those writs for the whole value of the property, or failing in this, might nullify their own words and acts, and as landlords claim the fund as the product of their tenants' goods! To this we cannot agree. With bona fide creditors this kind of double dealing is not allowable. It is out of all conRowland Evans and R. L. Ashhurst, for ap-science that creditors should be thus driven to pellants and plaintiffs in error.

decree of the Court.

Rufus E. Shapley and Richard P. White (George H. Earle, Jr., with them), for appellees and defendants in error.

February 18, 1884. THE COURT. We have before us for our consideration two appeals and two writs of error; as, however, they all arise from the distribution of but one fund, they were argued as one case, and therefore require but one opinion for their disposition.

the trouble and expense of disproving title in the claimants, and when this has been successfully accomplished, that those same claimants should be permitted to pocket the fund by the interposition of the very title by which they were defeated. As to this, the learned Judge of the Court below has well said, "if they lose their claim as landlords by attempting to play a double-handed game for the fund in Court, no one is to blame for it but themselves."

The remaining question arises in the considWe are of the opinion that the two cases eration of the writs of error. The Auditor and which are now before us in the shape of appeals Court below held, that the agreement of the were well disposed of in the Court below. 26th of March, 1877, between George L. CrawWhen, on the 24th of Augnst, 1881, the appel-ford, trustee of the Edwards's estate and John D. lants gave notice to the sheriff, who had then levied, or was about to levy, on the furniture of the St. George Hotel as the property of John D.

Ward was as to the personal property therein described, a conditional sale, constructively fraudu lent as to creditors, hence, said property was

liable to seizure and sale as the property of Ward. We are inclined to think that this conclusion was erroneous. In order to make a sale, which is conditional as to the parties, absolute as to creditors, there must be a delivery of the goods in pursuance of the contract, for without this there can be no present sale, and an agreement of sale without an accompanying transfer, amounts to nothing more than a contract to sell at a future time, or upon the fulfilment of stipulated conditions. Furthermore, the delivery of possession alone, though a material indicium of ownership, does not of itself constitute a sale, for the goods may be delivered in bailment, as in loan or hiring. There must in addition to the possession, be at least such a conditional or qualified title passed to the buyer as to give him a transferable interest in the chattels; such an interest as he can, at any time during the running of the condition, sell and dispose of at his own will. (Krause v. The Commonwealth, 12 Nor. 418.) Again, in order to ascertain whether the contract is one of sale, or of bailment only, we must, where there is doubt, ascertain from the terms of that contract the intention of the parties. (Enlow v. Klein, 29 P. F. S. 488.) If from that contract we discover that the party who receives the possession of the goods, receives them under an agreement that he is to retain them for a definite period, and if at or before the expiration of that period, he pays for them he is to become the owner, otherwise to pay for the use of them, this, as was held in Rose v. Story (1 Barr, 190), is but a bailment, and the title to the property, even as against creditors, remains in the bailor. If during the period of the bailment the bailee pays part of the price fixed, a creditor may levy upon and sell the bailee's interest, but no right of the bailor will thereby be extinguished. Although payment for the use of the bailed goods is, in the above citation, stated as a condition of the bailment, yet it is clear that this is not always necessary, for a loan under a like condition of sale would be good. (Clark v. Jack, 7 Watts, 375.) Neither is a stipulation for the return of the property on the expiration of the time during which the bailment is operative, necessary, for if it is not returned the bailor may resort to his legal remedies, and thus enforce the contract. (Enlow v. Klein, supra.)

[eration of this case being thus defined, let us see what were the terms and conditions of the agreement of the 26th of March, 1877, and ascertain, if we can, from these terms and conditions, what was the true and honest intention of the parties. First, there was the lease of the hotel to run for the term of five years from the first of April, 1877; then there was, second, the agreement "to furnish to the party of the second part, with the said hotel, under this lease, all the stock and furniture therein on March 31, 1877." This looks to us like a leasing of the furniture as well as of the hotel. Under this lease the lessor was as much bound to put Ward into the possession of the personal property as he was to put him into the possession of the realty, and, in fact, the latter could not be used without the former; if Ward did not get the furniture he could not run the hotel. He thus went into the possession of both by virtue of the lease and by virtue of nothing else. Nor is it necessary for us to stop to consider the partial payment made upon account of the furniture under the previous lease, for both parties deal upon the assumption that that furniture did, on the first of April, 1877, belong to the lessor, and as there were at that time no intervening creditors, we must leave the matter as the contracting parties settled it.

Now, the Auditor admits that a lease of both hotel and furniture would, as to the latter, have been a legitimate bailment, and that not even a superadded clause for a conditional sale would have brought the plaintiffs within the Statute of Elizabeth, and in this he is undoubtedly correct. But we cannot see how any one can undertake to say, in view of the contract of the parties and the surrounding circumstances, that Ward either did get, or could have gotten into the possession of these goods on the first day of April, 1877, in any other capacity than as the tenant of Edwards's estate. It was certainly not at that time intended that they should be handed over to him as owner, or that he should have a present transferable interest in them. They were the necessary appurtenances of the hotel, and as tenant of that hotel he came into the possession of them. But if his possession came through the lease, it is conceded that the subsequent provision for a sale could not alter the character of that possession, or change the nature of the contract resulting from it. Nor do the words of the agreement leave the intention of the parties at all obscure. By express stipulation no title to the goods was to pass to Ward until they were fully paid for, and until he did so pay for them he could have no transferable interest in them, otherwise he could at any time defeat the object of the lease by a sale of that interest. It is, however, unnecessary for us to dwell upon this matThe legal principles entering into the consid-ter, for, as we have shown, if Ward's possession

On the other hand, when, from the contract or arrangement between the parties, the possession is transferred to the vendee, and the ostensible ownership reserved to the seller for the purpose of security only, there, whilst the condition is good as between the parties, it is bad as to creditors; as to the latter the sale is absolute. (Martin v. Mathiot, 14 S. & R. 214; Brunswick Co. v. Hoover, 14 Nor. 508.)

February 26, 1884. THE COURT. The plaintiffs below, defendants in error, on the 16th of March, 1883, filed two several claims under the February 1, 1884. Mechanics' Lien Act, for the price of certain Girard Point Storage Company v. South-work and materials furnished to the contractors

"Said company was incorporated on the 21st of February, 1881, to elevate, store, handle, and transfer grain; to do a general storage business Error to the Court of Common Pleas No. 4, of in all kinds of merchandise; to transfer merPhiladelphia County.

Two mechanics' liens were filed by the South-vessels; and to construct or otherwise provide wark Foundry and Machine Company and Fairbanks & Co. against the Girard Point Storage Company et al., and a certain building and curtilage used as a grain elevator, to recover for work and materials furnished.

The facts of this case, together with the opinion | house receipts; to advance money thereon; and of the Court making absolute the rule for judgment, for want of a sufficient affidavit of defence, are fully reported in Southwark Foundry Company v. Girard Point Storage Company, 13 WEEKLY NOTES, 503.

corporation and regulation of certain corpora- | enforceable. But we cannot understand why a tions, and the several supplements, as is speci- company organized for the shifting and storage fically set forth in Pamphlet Laws of 1881, of grain should occupy, in this respect, a position 230. Deponent saith that the ground described superior to those thus mentioned. All are alike in said claims is part of a larger piece, com- established for private purposes, and by them the prising one hundred and thirty acres, acquired public is at best but incidentally benefited. If, by the said corporation for the execution of its however, the property and buildings of every perfranchise, and that the buildings referred to in son and association, whose trade or business in said claim, with others, were erected on said any degree advanced the common welfare, were ground as an integral part of the corporate pro- exempt from the ordinary forms of lien and exeperty, without which the corporate franchise cution, the collection of debts would soon become could not be successfully maintained, and for so tedious and expensive that, in most instances, that reason neither is subject to the lien of the their abandonment would be the better policy. claims herein before referred to." Nor can we understand how the case of Munn v. From the facts here stated it is argued that the Illinois (4 Otto, 113) can affect the case in hand. Girard Point Storage Company is in the nature The question there involved is not the rights of of a public corporation, and that the general a corporation, but those of a private person, and public has such an interest in its works as to pro- the principle involved in the ruling of the Sutect it from the incumbrance of a mechanic's preme Court of the United States was, that where lien. It cannot be denied, but that if this cor- the owner of such property as a warehouse deporation bears the character here claimed for it, votes it to a use in which the public has an init cannot be thus disturbed. The material ques-terest, he in effect grants to the public an interest tion then is, what rights have the public in and in such use, and must, therefore, to the extent upon the property other than what it would thereof, submit to be controlled by the public for have did that property belong to a private indi- the common good as long as he maintains that vidual, or to an unincorporated partnership? use, but he may, at any time, withdraw this imWe understand very clearly and distinctly the plied grant by discontinuing the business from relation of a turnpike-road, canal, and railroad which it arises. But it certainly does not follow to the public. The people of the Common- that because of this public interest the property wealth have the right of way over them, which of a private person is made public property, or right, when occasion requires, may be exercised even quasi public property, or that it is therefore regardless of the will of the corporations owning them. They are highways, and the companies operating them have the right of eminent domain conferred upon them only because of this direct interest which the public has in these methods of transit. But in the works of the corporation defendant the community at large has no other or further interest than it has in the store-houses of furnished. This, however, is not the view taken private individuals. It may receive the grain of one person and refuse that of another; or it may, at its own will, suspend operations and shut out the public altogether. Its organization is all that it has received from the public; beyond this the public has no special interest in it, and when this organization disappears there is nothing left of a public character, or anything over which the Commonwealth has control. Very different is the case of a turnpike, a canal, or railroad, which remains for the common use after the corporation which built it has dissolved, and which the State may take possession of for the public welfare. Mr. Chief Justice THOMPSON, in the case of Foster v. Fowler (10 P. F. S. 27), has shown very clearly the distinction between those corporations in which the public is directly interested, and those in which it has only an indirect interest. Among the latter he mentions manufacturing, coal, and iron companies; and he adds, that as against such as these liens are

exempted from ordinary execution process.

But the learned counsel for the defendant further contends, that if this property is at all subject to a mechanic's lien, the claim should have been filed against the entire property, and should not have been confined to the particular buildings for which the work and materials were

of the Mechanics' Lien Law by this Court, as
will appear by reference to the cases of Nelson v.
Campbell (4 Ca. 156), and Parrish & Hazzard's
Appeal (2 Nor. 111). Nor do we believe that a
lien so general in its character as to embrace
many separate buildings and a hundred and thirty
acres of ground, could be sustained. If it is in
fact true, that all this is but the proper curtilage
of the buildings against which the lien is filed,
then will that lien cover it. But a question of
this kind cannot be tried on the scire facias; it is
rather determinable by commissioners, who, for
that purpose, may be appointed by the Court be-
low before a sale of the premises.
The judgments are affirmed.
Opinion by GORDON, J.

C. B. T.