
    [Pittsburg,
    September, 1823.]
    CUNNINGHAM against NEVILLE.
    ÍST ERROR.
    Where goods assigned are susceptible of delivery, a mere symbolical delivery is; not sufficient to exempt the case from the charge ol legal fraud, if the assignor retain possession.
    It seems, no colourable delivery will answer where actual delivery may be given.
    
      A schedule will not make an assignment valid, if otherwise it is fraudulent ip. Jays by the retention of possession.
    
      Trespass, in the Court of Common-Pleas of Allegheny county, brought by Nicholas Cunningham, the plaintiff below, against Morgan Neville, sheriff of the county, who had, under a judgment and fieri facias issued against one Thomas Cromwell, seised and sold certain furniture and goods in his possession, which the plaintiff claimed under an assignment in writing, dated the 29th October, 1819, recorded on the next day, in the Recorders office. The plaintiff took this assignment to secure himself against the amount of certain notes held by the Bank of Pittsburg, drawn by Cromwell, and indorsed by Cunningham, for Cromwell’s accommodation, on which Cunningham afterwards paid a sum about equal to the value of the property, Cromwell having become insolvent. The assignment contained a stipulation, that the, assignor should retain possession, A chain, and some silver spoons and other articles were handed by Cromwell to the plaintiff at the time of the execution of the assignment' as a symbolical delivery of the different kinds of articles conveyed, and a schedule was annexed. But the goods were left in the possession, and under the control of Cromwell.
    
    The President of the Court below, charged the jury as follows; It is an established principle of law, that the possession of chat-ties must accompany and follow the transfer of them; and although there may be no actual fraud in such transfer, it is fraudulent as against creditors. There are no facts in this case that take it out of the general rule. The defendant is therefore, by the law of the land, entitled to a verdict. The agreement of the parties to the transfer, that the owner should retain possession of the goods, so far from helping it, appears to me rather colourable than otherwise, to give the transaction an appearance of fairness, by the solemnity of a deed. The recording of it has the same aspect, because there is no law for the recording of such instruments of writing. Although it may not have been the intention of the parties to protect the property of Mr. Cromwell from the reach of his other creditors, the bill of sale, if a valid one, would have that effect. It ought therefore to have no operation as to them,
    
      The plaintiff excepted to this opinion: The jury gave a verdict for the defendant, and judgment was entered thereon.
   The opinion of the court, (Tilghman, C. J. being absent,) was delivered by,

Gibson, J.

There is nothing to distinguish this case from Clow v. Woods,5 Serg. & Rawle,275, exeeptthe circumstances of asymbolical delivery and a schedule of the articles assigned. The first is necessary only where peculiar circumstances preclude the possibility of actual possession; and there it is equivalent to actual possession, because the transaction is susceptible of no act of greater notoriety. But where the possession may be permanently changed by actual delivery of the thing, delivery of a part in the name of the whole, or of any thing else, or even of the thing itself where it is after-wards taken back, is of itself a badge of fraud, because it is apparent on the face of the transaction, that the delivery was merely colourable, and that more mighthave been done to guard against deception. The notion of symbolical delivery is derived from the form of the ancient feudal investiture, in which the delivery of a twig or a clod was a ceremony, to manifest to the senses of the freeholders, who were supposed to be witnesses, the nature of the act which was done; but there actual possession was at the same time given, and if the land itself had been capable of manual delivery, the feoffor would never have resorted to a symbol.

• A schedule may be necessary to avoid the imputation of legal fraud, where retention of possession would in other respects have been justifiable; but where there is no fact or circumstance which could authorise it, a specification of the articles either in a schedule, or in the body of the instrument, will not be a justification. An assignment of chattels may be void for want of aschedule, but where there is no satisfactory reason why the possession did not accompany the transfer of the property, a schedule or specification will not cure that which is radically wrong.

Judgment affirmed.  