Page:Federal Reporter, 1st Series, Volume 5.djvu/433

 elackwelij V. Walkeb. 421 �not tote consumed in their use, under a condilSonal contract of sale like these we are consid«nng, is not one of them. �One of the earliest cases in this country on the subject of cbnditional sales was Hussey v. Thornton, 4 Mass. 405. In that case the cbntest was between the vendor and anattach- ing crediter of the vendee whose'debt wascontracted^jw?- to the conditional sale. The cburt held the conditional sale valid against the attaching creditor, but in the course of the opinion in the case Parsons, C. J., said : "Had the demanda of these attaching creditors originated while the goo4s -were in.the possession of Tood&Worthly, [the conditional vsndees,] so that it might be fairly presumed that a false credit was given them, or had they sold them bona fide for a valuable consideration, our opinion would have been otherwise." This expression of opinion was not necessary to a decision of the case before the court, and afterwards, when a case did arise making it necessary to decide whether such sales were valid against creditors whose debts were contracted while the vendee was in possession of the property under such conditional pur- chase, the dictum in Hussey v. Thornton was disapproved, and Parker, C. J., who delivered the opinion of the court, said : "If the transaction is fraudulent, the vendor setting up a condi- tion to the sale, yet suffering the vendee to be in possession, exercising fuli rights over the property, with the intent and purpose of enabling him to obtaiii credit on the strength of the property, he will not be able to avail himself of such con- dition, but the sale wiU be held to be absolute in regard to creditors. But if hona fide, and the object of the condition was merely security to the vendor, he shall not lose his prop- erty because some creditor of the vendee supposed it to belong to him." Ayer v. Bartlett, 6 Pick. 71. �Later cases in the same state afiSrm the law as laid down in Ayer v. Bartlett, and it seems to be the settled doctrine of the courts in thia country. Arrington v. Houston, 38 Vt. 448 ; Bigelow v. Huntly, 8 Vt. 151 ; Buckmaster v. Smith, 22 Vt. 203; Chaffe v. Sherman, 26 Vt. 237; BradXey v. Arnold, 16 Vt. 382; Paiis v. Vale, 18 Vt. 277; Barrett v. Pritchard, 2 Pick. 512; S. C. 13 Am. Dec. 449, note; Marston v. Bald- ����