ton, that attempts to justify the right to ex clude all incidents of ownership, such as lia bility for debt, assignability, etc., in the case of a man, and a refusal to recognize the capa city of withholding from a gift to a woman the right of a future husband to possess himself of the property. The impossibility of doing this thing consistently is plain enough; but this fact was no obstacle to an attempt to cover up the contradiction and preserve it under a juggle of words. What has been the result? The Pennsylvania doctrine as to the separate use is merely a ludicrous off spring of ignorance, while a twin-brother has been brought into existence under the name of Spendthrift Trusts, which is in vio lation of our well recognized fundamental laws, political and statutory, of property, and absolutely inconsistent with every one of our reasons for rejecting the rational rule of the separate use. Jenkins v. Eichelberger, 4 Watts. 121, is an excellent specimen of the turn of Gib son's mind and the nature of his reasoning. It was the ordinary case of the owner of raw materials employing a mechanic to man ufacture them on the terms of paying him the difference between the value of the raw and manufactured article. The only possi ble excuse for such sophistry is that the plan may be used to conceal the real transaction. But the genuineness of the bargain is a mere matter of fact. Because juries refuse to see through the judge's spectacles, is certainly no reason for denouncing a transaction, which, if true, is fairness itself. That the result was the same as a sale and resale was Gibson's argument. But what bearing has that on the question, which was, Is the transaction a fraud on the credi tors of the mechanic? Where is the ground for a creditor's demand that he shall have a greater right than that of his debtor, as it is his right he claims? The supposed false credit by possession he alludes to he cer tainly knew was a mere misleading state ment in a country where lending is quite legitimate, and no lender was ever asked to
prove that the fact that it was a loan should be known to creditors at the peril of forfeit ure by the owner; and surely the Judge must have known that it required a statute to introduce the doctrine of apparent owner ship into the law of debtor and creditor. But were the consequences the same as those of a sale? They were that the risk remained with the owner of the hides, — risk of fire, theft, injuries of all kinds. The chance of the market lay on the mechanic, certainly; and how is this test of ownership avoided? By arguments that were power ful to prove the arrangement a sham. But that was not before him, unless he meant to say that such a contract is illegal, —-which would be absurd. This refusal to recognize the property of an ordinary commercial contract may have resulted from an unhappy bias got from a mistaken view of the rule known as that of Twyne's case. The court were themselves to blame for not observing that the failure to deliver possession of chattels varied as evi dence of fraud according to the character of the transaction. To assume that a delay on delivery of pigiron or coal when for the convenience of the purchaser could be compared to the failure to deliver furniture in use by the seller when there could be no explanation of the motive of buying but that the seller desired to pro tect the possession, naturally led juries to pay no attention to the instructions. But the peculiarity of the mind of the ChiefJustice is brought into sharp relief in his judgment in Pritchett v. Jones, 4 Rawle, 260. It seems impossible to resist the inference that he assumed that the reason for the rule in Twyne's case was that there was something immoral in the retention of possession by a seller, and not that it was evidence of an intent to protect property under cover of a sale. It is impossible to put the distinction be tween the contract that passes title ar.d the contract that creates a duty to give title at a future day better than Gibson does. But
