The opinion of the Court was delivered by

The oxen being found in the possession of Pettigrew, when they were levied on and sold under the execution of the Guthries, the title to them was prima facie in the officer’s vendee. It was therefore incumbent on M’CIure, who claims by a previous transfer to him from Pettigrew, against the sale by execution, to show that the possession of the oxen accompanied and followed the transfer to him. It is not sufficient that the assignor gives to the assignee a delivery which may be symbolical or constructive, or as here a temporary delivery, and then takes the articles back into his own possession, and keeps and uses them just as he did before. This is not the possession in the assignee which the law requires. There must be not only a delivery of the thing to him at the time of transfer, but a continuing possession, and that must be shown by the claimant. There is no evidence whatever that M’CIure ever removed the oxen from the place of the alleged delivery, ever had them in his own stable or field, or anybody else’s for him, or ever used or employed them as his own. Not only is there no evidence that the possession of M’CIure followed the transfer, but rather the contrary; for, according to Pettigrew’s own statement, with the exception of an inter*151val of one hour, the possession continued in Pettigrew; and even during that hour no exclusive possession is shown in M’Clure, the assignee; so that the possession of the assignor does not appear to have been altered. It is alleged to have been an absolute transfer to M’Clure, and no sufficient reason is assigned why he, after an hour’s interval, permitted Pettigrew to get the oxen shod, and take them back into his own custody and employment. All that is proved might well exist, and yet the whole be a mere contrivance between M’Clure and Pettigrew, that Pettigrew should keep the oxen, but M’Clure should have a security or lien upon them for the price agreed on. If such a transaction is allowed, it would be very easy to concoct schemes for defeating judgment creditors, and yet allow the assignor to keep possession. The question, however, is not, in these cases, whether, under all the circumstances, the transfer is in good faith,. and without design to cover the property, or to delay or hinder creditors. It is an inflexible rule which makes it a fraud per se, if the possession does not follow as well as accompany the transfer. Clow v. Woods (5 Serg. & Rawle 275; Babb v. Clemson (10 Serg. Rawle 419); Carpenter v. Mayer (5 Watts 485); Hamilton v. Russell (1 Cranch 309).

If it was a fraud in law, without regard to the intent of the parties, it became a question for the court and not for the jury to decide. Dornick v. Reichenback (10 Serg. & Rawle 84); Carpenter v. Mayer (5 Watts 485). There being no evidence to show that the possession accompanied and followed the transfer, the plaintiff failed in making out his case, and the court on the evidence ought so to have instructed the jury. They erred in instructing the jury, that if they believed it was a fair, honest, bona, fide sale, and that the oxen were delivered to M’Clure, and that they were loaned to haul coal to Greenville, or the possession given to Pettigrew until M’Clure should sell them, the plaintiff was entitled to a verdict.

The objection to the blank in the declaration comes too late after verdict.

Judgment reversed, and venire facias de novo awarded.