periled and the extent of the probability of harm thereto with the social value of the conduct which threatens and causes the harm. Not only may there be changes in the physical conditions and surroundings of life by new inventions, new modes and habits of living, but there may be, and often is, a complete revaluation of the respective interests concerned. To regard a standard of conduct as fixed and immutable because judicially announced, is to create a standard which, however just or even necessary at the time, may become a scandal and a hissing in the future.

It is true that a persistent change in public opinion as to the relative value of the interests compared, tends to find expression in judicial decision. Thus, the early decisions, which held that the landowner's interest in doing as he pleased upon his own land, was of greater value than the life and limbs of even a morally innocent intruder, have yielded to a change in public opinion which places a higher value on life and limb than upon the traditional dominional prerogative of a landowner. Yet the processes by which this change of value has forced the creation of a new standard by which the conduct of landowners is judged, has been one of continual fiction and false analogies. It is only recently that a few courts have had the temerity to base such decisions upon the relative values of the interests concerned. And even within the last year one of the ablest and most enlightened of American judges denied recovery in a case of an infant trespasser, because he did not come within the exact terms of a fiction, whose only purpose was to protect just such persons as infant trespassers, while appearing to adhere to archaic precedents which denied them protection.

The second danger is that, in its endeavor to protect defendants from the prejudice of juries, the court must by its

'F. H. Bohlen, "Owner's Duty to Those Entering His Premises of Their Own Right," 69 U. OF PA. L. REV. 142, 237, 340 (1921), especially 237 to 252, and 347 to 350; and Professor Manley O. Hudson's able and exhaustive article on "The Turntable Cases in the Federal Courts," 36 HARV. L. REV. 826 (1923).

See "The Turntable Cases in the Federal Courts," note 4, supra. 'Holmes, J., in Britt v. United Zinc & Chemical Co., 258 U. S. 268 (1922).

decisions fix standards of conduct so definite and precise as to give to unscrupulous practitioners extraordinary opportunities for the successful coaching of their witnesses. This is particularly true of the very minute and rigid codes of standards, judicially established in some jurisdictions, to which plaintiffs must conform to clear themselves of contributory negligence. Often these standards tend to degenerate into an etiquette or ritual, having little or no relation to what any normal person would regard as being obligatory under the various circumstances which they cover. In such cases unscrupulous practitioners know exactly what they must prove to escape a non-suit or a directed verdict for the defendant.

It is no uncommon experience to hear uneducated witnesses describe the conduct of the plaintiff in terms which are almost a literal repetition of the latest opinion by some justice of the supreme court of the particular state. This may be a mere coincidence. It is not impossible that even an ignorant foreigner recently come to this country may have a mind whose operations are so like those of a justice of a supreme court as to lead him to speak in substantially identical language. But it does not seem uncharitable to suspect that careful instruction by practitioners, whose interest it is to study such opinions minutely, is responsible for such testimony. Thus, courts, in their endeavor to protect the defendant, often overshoot their mark and put a weapon in the hands of those who prostitute their profession by false claims in which they have a direct and material interest. But even if this practice is not as prevalent as one is led to believe by the statements constantly made by lawyers, whose principal business is in defending accident cases, yet the very rigidity of the rules, the insistence that the plaintiff must exercise a degree of care which the ordinary man would regard as altogether unnecessary, is apt to lead the jury to believe that, if the court leaves the case to them, they are substantially directed to find a verdict for the plaintiff. It is true they need little urging, but at the same time it seems impossible to ignore the effect of arguments, made before them on motions

for non-suits, in which the court is asked to apply to the plaintiff's conduct standards which the jury regards as unnecessarily severe, as leading them to feel that their function is only to register a verdict in favor of the plaintiff.

Is it too much to hope that courts, who must often take over this function from the jury in order to give proper weight to the social utility of conduct which undoubtedly threatens harm to the legally protected interests of others, will realize that, in so doing, they are exercising an administrative function and that such decisions are not, like their decisions construing and declaring those principles which are fundamental to our concept of law, sacrosanct from judicial re-examination and change under changing conditions?

Francis H. Bohlen.

University of Pennsylvania Law School.

CONDITIONAL SALES IN PENNSYLVANIA SINCE THE

ADOPTION OF THE SALES ACT.

I.

It is necessary, at the outset, to define and limit the term, "conditional sale." A conditional sale, as considered in this article, is a contract to sell, which provides that the goods are to be delivered into the possession of the vendee, but that title in the goods is to remain in the vendor until full payment of the purchase price. Throughout this article the term, "conditional sale," will refer exclusively to such a contract. The purpose of this article is to ascertain whether or not the Sales Act has changed the law of conditional sales as it existed in Pennsylvania before the adoption of that act. Or, to put the question in another form, since the adoption of the Sales Act in Pennsylvania, can a vendor enforce the condition in a contract of conditional sale, reserving title in himself until full payment of the purchase price, against third parties after delivery of the goods to the conditional vendee?

The general principle of the common law, which was early adopted in Pennsylvania, was that in a sale of goods the vendor could convey only such title as he actually had.1 The question naturally arose whether a conditional vendee who had come into possession of goods under a contract of conditional sale would fall under this general rule. Could a conditional vendee, in possession of goods under a contract of conditional sale, only convey such title in the goods as he had? The courts of Pennsylvania very early answered this question in the negative. Briefly stated, their answer was that the condition reserving title in the vendor until full payment of the purchase price, while good and enforceable as between the original parties, was unenforceable against creditors of, or bona fide purchasers

1 Hosack v. Weaver, I Yeates 478 (Pa. 1795); Hardy v. Metzgar, 2 Yeates 347 (Pa. 1798); Lecky v. McDermott, 8 S. & R. 500 (Pa. 1822); Rapp v. Palmer, 3 Watts 178 (Pa. 1834); McMahon v. Sloan, 12 Pa. 229 (1849); Kusenberg v. Browne, 42 Pa. 173 (1862).

from, the conditional vendee.2 This rule of law was so well established that nothing is to be gained by merely showing that such was the law of Pennsylvania prior to the adoption of the Sales Act. This article will, therefore, be primarily directed to an attempt to show how the Pennsylvania courts reached such a conclusion; and then to determine whether the Sales Act has changed the law of Pennsylvania in this respect.

RIGHTS OF A CREDITOR OF A CONDITIONAL VENDEE.

Martin v. Mathiot, decided in 1826, was the first case that arose in Pennsylvania necessitating a decision as to the enforceability of the condition, reserving title in the vendor under a contract of conditional sale, against a third party after the transfer of the possession of the goods to the conditional vendee. This was an action of trespass, brought against Mathiot, a sheriff, for levying on certain goods as the property of one Michael. The evidence showed that the goods were sold and delivered by the plaintiff to Michael, with the stipulation that title was to remain in the plaintiff until the price was paid. Under a writ of execution Mathiot had levied upon and sold the goods as the property of Michael. The lower court entered judgment for the defendant, because it was of the opinion, “if vendor and vendee agree, that the possession shall pass to the vendee, but the property remain in the vendor, until the whole purchase money is paid, such agreement, as respects creditors and the sheriff, is fraudulent." On appeal, the Supreme Court affirmed the judgment of the lower court. The following quotation from the opinion of Mr. Chief Justice Tilghman will show the reasoning of the court, whereby such a conclusion was reached:

2

"All the world has a right to suppose that he (Michael) was the owner of the horses which he drove, and a secret

See Martin v. Mathiot, 14 S. & R. 214 (Pa. 1826); Rose v. Story, 1 Pa. 190 (1845); Chamberlain v. Smith, 44 Pa. 431 (1863); Rowe v. Sharp, 51 Pa. 26 (1865); Haak v. Linderman & Skeer, 64 Pa. 499 (1870); Stadfeld v. Huntsman & Co., 92 Pa. 53 (1879); Brunswick & Balke Co. v. Hoover, 95 Pa. 508 (1880).