
    *Weller against Wayland.
    A bill of sale, cureSegrauiee from his liability T promissory note, for the ac-ofmthe° ¿-antor, isnotfrauddent the Statute Pf ⅛ ⅝, as' pains! tn s“b" suedPy a judgment creditor.
    And if the grantee ailo\% part of the goods comprised in the bill of sale, to remain in the possession of the grantor, or redeliver them to him, although these goods are subject to an execution, yet the right of the grantee, as to the residue, is unimpaired, and they cannot be levied on by execution,
    THIS was an action of trespass de bonis asportatis, which was tried before Mr. J. Spencer, at the Orange circuit, in September, 1817.
    In February term, 1814. of the Court of Common Pleas of the county of Orange, Sally Ann Barclay recovered a judgment against William Gorham and wife, for 208 dollars and qq cents, damages and costs, which was docketed on the 2d of March following. On the 28th of February, in the same year, Gorham, who was a tobacconist, by bill of sale, expressed to be for the consideration of 1,500 dollars, “ being the amount two notes endorsed by the plaintiff, and on the day of the date discharged for Gorham,” bargained and sold to the plaintiff, all the goods, wares, merchandises, household stuff, and furniture, mentioned in a schedule thereunto annexed, of which Gorham put the plaintiff in full possession, by delivering to him 1,000 cigars, at the time of the sealing and delivery thereof, in the name of the whole premises. The property in question, being twenty kegs of tobacco, valued at ten dollars each, was among the goods specified in the schedule. To prove the consideration of the bill of sale, the plaintiff' produced in evidence two promissory notes, drawn by Gorham, and endorsed by the plaintiff; one dated the 18th of July, 1814, for 1000 dollars, payable in 90 days, at the bank of Orange county, and the other dated the 14th January, 1814, for 500 dollars, payable in 60 days at the Middle District Branch Bank at Kingston, Upon the last-mentioned note, there was an endorsement of the cashier of the Middle District Branch Bank, that the contents of the note had been received of the plaintiff-, on the 28th of February, 1814; and it was testified by the cashier of the bank of Orange county, that the note for 1000 dollars, was discounted at his bank, for the accommodation of Gorham; that, when it fell due, the plaintiff' gave his own note, with a new endorser ; and that, this note having been renewed once or twice, a suit was #fmally brought against the plaintiff for the amount, and judgment being recovered, it was levied on the plaintiff’s property.
    
      Lowry, a witness on the part of the plaintiff, and who was a foreman in Gorham’s store, at the time of the execution of the bill of sale, stated that the plaintiff was put into the full and absolute possession of Gorham’s stock in trade, and took the keys of the store. The plaintiff then employed the witness to conduct the business of the store, and manufacture the tobacco on hand. The witness had the entire management of the business, and kept the accounts, but was occasionally assisted by Gorham, who, sometimes, made sales, at the request, or during the absence of the witness; and paid over the money which he received to the plaintiff. Other witnesses were introduced, in the course of the trial, on the part of the plaintiff, in corroboration of the testimony of Lowry, and the defendant offered several witnesses to disprove the fact of delivery of possession from Gorham to the plaintiff. It was stated, that Gorham’s sign was not removed from the store, on the transfer of the property ; and that the plaintiff’ gave back to Gorham some articles of household furniture mentioned in the schedule, for the accommodation of his family.
    An execution, having been issued upon Barclay’s judgment, was delivered to the defendant, then a deputy of the sheriff of Orange county, who, on the 3d of March, levied upon the goods in question, and afterwards sold them for the purpose of satisfying the execution.
    The judge charged the jury, that, if the testimony of Lowry was to be believed, he had the possession of the property, as agent for the plaintiff; that it was not necessary that it should have been removed ; that although part of the property mentioned in the bill of sale may have remained in the possession of Gorham, yet that would not affect the part of which 'Lowry had the possession for the plaintiff, as the bill of sale might be good and'operative as to the articles delivered, and void and inoperative as to the residue; that the officer had acted at his peril, and that the plaintiff was entitled to recover the value of the property taken.
    The jury found a verdict for the plaintiff, which the defendant *moved to set aside, on the merits, and also on an affidavit of newly discovered evidence, which was, that the note for 500 dollars, was not paid by the plaintiff, on the 28th of February, as stated in the endorsement on that note, but that another note was given in lieu of it.
    
      Fisk, for the defendant,
    contended, 1. That the bill of sale by Gorham, to the plaintiff’, was made for the purpose of defeating Mrs. Barclay's execution, and was, therefore, fraudulent and void. There being a consideration for the sale, will not take it out of the statute; (Cadogan v. Kennctt, Cowp. 432.) it being a shift, or contrivance, to defeat a creditor.
    Again ; unless possession accompanies, and follows such a deed, it is fraudulent and void. (2 Term Rep. 587. note. 1 Cranch, 309. Sturtevant v. Ballard, 9 Johns. Rep. 337.) The possession of the vendee must be exclusive, and entire. A joint possession with the vendor is fraudulent. It must be a bona fide and exclusive possession. (I Esp. JV. P. Cases, 205. 1 Campb. US. P. Rep. 332.)
    2. The judge’s charge was incorrect. A deed void in part, is void in toto. (Ilyslop v. Clarke, 14 Johns. Rep. 458.)
    
      Bristed, contra.
    The possession of the vendor is only_pnm« facie evidence of fraud, and may always be explained. (Storm, fy Beekman v. Woods, 11 Johns. Rep. 110.) The plaintiff’s claim is for the tobacco, which was transferred and delivered to him on the 28th of February, by delivering to him 1000 cigars in the name of the whole.
    Again; the plaintiff was a bona fide creditor of Gorham : and a debtor may lawfully prefer one creditor to another. The statute of frauds does not apply between creditors, (2 Johns. CL Rep. 283. 306. 14 Johns. Rep. 463.) An execution does not bind personal property, until delivered to the sheriff; nor, indeed, until executed. (12 Johns. Rep. 320. 324. 164. 403. 536.)
   Per Cxuiam.

The bill of sale was not fraudulent within the statute of frauds, (sess. 10. c. 10. ⅞ 2.) if made to secure a creditor his debt; though the effect of it might be to postpone *Mrs. Barclay's execution (2 Johns. Ch. Rep. 307, 308, 309.)

2. The doctrine of the case of Hyslop v. Clark, (14 Johns. Rep. 462.) does not apply, for the bill of sale is not made void by the statute; and if by matter ex post facto, such as leaving part of the household goods in Gorham’s possession, as to which the execution of Mrs. Barclay might operate, this cannot invalidate the bill of sale itself, which, in its inception and consummation, was not fraudulent.

3. The discovery of new evidence, that Gorham’s note was not actually taken up, is immaterial. The plaintiff was the endorser, and had a right to be secured,

denied. 
      
      
         A bill of sale, or assignment of goods, declaring that the object is to secure, the vendee as surety for the vendor, and that in case the vendee shall become liable, that he may turn the goods out on execution, or that they should be at his disposal at private sale, accounting to the vendor for the proceeds, is in the nature of a mortgage, the possession of the vendor consistent with the face of the deed, and therefore not evidence of fraud, as to creditors. Marsh v. Lawrence, 4 Cowen, 461.
     