Page:Federal Reporter, 1st Series, Volume 4.djvu/899

 HOMANS Vj HBWTOII. 885 �iiiive been in tîie mînds of the parties. I do not Imow what their laws would say to a lien not recorded; but, as to a con- ditional sale and delivery, I understand the law of New HampBhire to agree with that of Maine. The early case of Sargent v, Gile, S N. H. 325, bas not been overruled, that I can discover. �It bas, bowever, been held that one wh© buys chattels in Massachusetts of a vendee whose own title is conditional takes only what the law of Massachusetts would give him, even if at the place wbere the conditional sale was made the law would bave upheld the title of an innocent purchaser. Hirschom v. Canney, 98 Mass. 149. That is tbis case ; and, if the law of this commonwealth is to govem, there is no doubt that it prefera the title of the conditional vendor. The decisions wbicb bave foUowed Coggill v. Hartford d N. H. R. Co. 3 Gray, 545, are so numerous that I bave room tocite but a part of tbem; some of them were more doubtful in respect to the condition, or its waiver, and others were barder for the purchaser than tbis case. See.Sargent y. Metcalf, 5 Gray, 306; Bnrbomk v. Crooker, 7 Gray, 168; Deshon y, Bige- low, 8 Gray, 159; Zv^htman y.Roherte, 109 Mass. ^^yBenner y. Puffer, 114 Mass. 376; Salomon v. ïïaiMwçty, 126 Mass. 482; iiTenney V. In^'atts, Id, 488. /' �. I bave examined the authoritiescited. for the defendants, and they seem to establisb that in a few of the 8t3,tea a eon- ditional sale is put on the footing of an unrecorded mortgage, wbicb, by statute, and not always or usuftUy by the common law, would be invalid against a purchaser. The case' cited to that effect from the court of appeals of New Yorli bas been overruled by Ballard v. Burgett, 40 N. Y. 314, and Austin v. Dye, 46 N. Y. 500; but I assume that some of the cases express the present state of the law in the states whose decisions they are. �No doubt there is bardship when one is enabled by posses- sion of a cbattel to commit a fraud ; but this is true of ail bailments. If I lend a horse to my neighbor, he may be able to deceive an innocent purchaser. The cases are precisely paraUel, for one who bas agreed for a conditional purchase ����