■ The plaintiff’s right to the chattels in this case is derived from a bill of sale, the validity of which’ is contested by the defendants on the ground of fraud. The property in question" was. purchased, by the plaintiff of Joseph Jennings, but no delivery of possession accompanied the "sale. '
The rule of law, as laid down in the case of Edwards v. Harben, (2 T. R. 587,) is, that if. there be nothing but the absolute conveyance, without the possession, in point of law the sale is void. The rule in this case has been considered as laid down with great strictness, and numerous exceptions to it have- been allowed, both in. this .country and in England. The correctness of the rule and the character of the exceptions to it were much considered in the cases of Sturtevant & Keep v. Ballard, (9 Johns. R. 337,) and Bissell v. Hopkins, (3 Cowen, 166.) In the opinion of the court in the latter case, the conclusion arrived at in the former is adopted jgjand approved, viz. “ that a voluntary sale of chattels, with an agreement in or out of the deed that the vendor may keep possession, is, except in special cases and for special reasons, to be shown to and approved of by the court, fraudulent and void as against creditors.” Where the possession is continued in the vendor, without any agreement to that "effect, the presumption- of payment is equally as strong. It is well settled that explanations may be given, which "will ef*450fectually repel the presumption of fraud arising from continuance of possession in the vendor. Fraud is a question of law, and especially where there is no dispute about the facts. It is the judgment of law on facts and intents. (9 Johns. R. 342.) In this case, the plaintiff attempted to repel the legal presumption of fraud, by explaining the reason why the delivery of the goods did not accompany the sale. His explanation was, that he had no farm or forage for the oxen; and he insisted that this ought to be submitted to the jury for them to say whether it was not sufficient to destroy the presumption of fraud in the sale; but the court below refused, and we think properly refused, to make this submission. The court say, in the case of Sturtevant fy Keep v. Ballard, that exceptions to the general rule, “that delivery of chattels must accompany the sale,” or, in other words, explanations for the continuance of the possession in the vendor of goods, “ must be shown to and approved of by the court.” When there is no dispute about the facts, there is nothing for the jury to pass on. Such was the case here. If there had been a contrariety of testimony in relation to the explanation set up by the plaintiff, then it would have been the duty of the court to have told the jury what was necessary for the plaintiff to make out and to have submitted to the jury, whether the requisite explanation was established by the testimony; but where the testimony uncontradicted furnishes no satisfactory explanation, and so we consider the evidence relied on in this case, there was not in fact any thing for the jury to pass upon. The sale of the goods for which the action was brought was fraudulent and void against creditors.
Were the defendants in a situation to impeach, on this ground, the plaintiff’s right to the goods in question? They justified the taking under executions issued against Joseph? Jennings, the possessor and former owner of the property. The plaintiff objected to the introduction of the execution and judgment as evidence, because the defendant Wilcox, who, as constable, had taken the property on execution, had joined with Carter, the other defendant, in a plea and notice of justification. This objection was overruled by the court *451below, and their decision is presénted here as erroneous, The objection is of a character somewhat technical, and there is some doubt whether it should be rigorously applied to pleadings in a justice’s court; but even if it should, it does not appear to be well taken in the present case. The rule on which it is founded is correctly laid down in 1 Saunders, 28, n. 2: “ If two or more in pleading join in a defence, which is sufficient for one, but not for the others, the plea is bad as to all; for the court cannot sever it, and say that one is guilty and the others not, when they all put themselves upon the same terms.” This is upon the principle that a plea is entire and not divisible, and therefore if bad in part is bad for the whole. The defendants joined in the plea of the general issue, and gave notice of justification under legal process. The evidence ought to be considered as offered not under the plea, but under the notice, which is allowed as a substitute for special pleas, with a view to avoid the technical subtleties of pleading. The officer has not, in any case that the court have observed, lost his justification by joining in a notice with others who could not avail themselves of the same justification. The defendant, Wilcox, was not precluded from proving the judgments and executions under the notice.
But if the defence is considered as introduced under the plea of the general issue, the proof was admissible, if Carter acted in aid and assistance of Wilcox, the constable; because, in such case, the execution afforded a justification of his acts, as well as those of Wilcox. If one comes in aid of the officer, he may justify as the officer may do. (2 Esp. 301. Salkeld, 409.) The bill of exceptions expressly states that Carter acted in aid of the constable, Wilcox.
There was no objection to the execution on the judgment of Blaisdale against Joseph Jennings, and that in itself affords a sufficient justification for the taking of the property, if the other execution was absolutely void ; but it is a matter of serious doubt whether the exceptions taken to the other execution are sustainable. The omission' of the Christian names of the plaintiffs in the judgment xvould not, it is apprehended, render void an execution in which the parties’ *452names are all fully set forth; and the court acted correctly in permitting the justice to shew that the plaintiffs named in the execution were the persons in whose favor judgment was tendered, and to explain the.error in-the recital of the execu*Íon as't° the day when judgment was rendered.
Judgment affirmed.