Leggett v. Rogers. than 96,000 acres, in the county of Hamilton, were bid in by the comptroller, and released by him to the state in pursuance of the 82d section. That more than $4000 were due on those lands for taxes, interest, and costs. A great proportion of that sum has been paid out of the treasury of the state to the county of Hamilton, in pursuance of the 31st section. The lands thus purchased by the state are no longer taxable, and the taxes heretofore assessed are cancelled by the purchase: and what is to be the consequence if the people of the state can not hereafter show a title under the release from the comptroller, unless they can prove that the assessors, supervisors, collectors, and the comptroller have each performed every act which chapter 13 required of them? The former owners will remain quiet, until those lands become saleable, and then take possession and put the people of the state at defiance. And should the attorney general be weak enough to bring an action of ejectment, some ten or twenty years hereafter, and be called upon to prove that the assessors did complete their assessment roll by the first day of September, and did put up the notices as required by the 19th and 20th sections, and that the assessment roll was delivered to the supervisor, and that he delivered it to the board of supervisors, and that they corrected it, and added the tax, and delivered the same to the collector with a warrant for collecting the taxes as directed by article 3d and title 2d of the said chapter, and that the collector performed all his duties according to article 1st of title 3d of said chapter-the people would be nonsuited in ninety-nine cases out of one hundred. It is difficult to believe that the legislature intended that there should be so much difficulty and uncertainty, as to the title of land sold by the comptroller for the non-payment of taxes. If they did, they contrived a most effectual mode of exhausting the treasury, and exempting uncultivated lands from effectual taxation. There are parts of chapter 13 which show that the legislature did not intend that purchasers at the comptroller's sales for unpaid taxes should be defrauded. By sections 89 and 90, if it be discovered, either before or after the conveyance is given, that the sale, for any cause, is invalid, the comptroller is authorized Frost v. Willard. to refund the purchase money and interest. There is no limitation as to the time within which application may be made to the comptroller to repay the purchase money and interest. Would it be enough to warrant the comptroller in repaying the purchase money and interest, if the purchaser shall prove by the affidavit of his agent that diligent search has been made for the original assessment roll and none can be found, and that no evidence whatever can be discovered showing that the assessors ever put up the notices necessary by the 19th and 20th sections? If that evidence would be enough, the state will want some other revenue than that arising from the canal, to meet all the calls on the treasury. And certainly if the legal presumption be, that the town and county officers have not done their duty, very slight evidence in aid of that presumption, ought to be enough to justify the comptroller in repaying the purchase money and interest. But should an application for repayment be made to him, he would point to the return made by the county treasurer, and say, "that is prima facie evidence that the tax was assessed and is unpaid; you must prove that that return is false or founded in mistake, or I can not listen to your application." And if that answer on the part of the comptroller would be correct, the plaintiff in this cause is entitled to judgment. New trial granted. SAME TERM. Before the same Justices. FROST & RIDER vs. WILLARD. An affidavit, made by a plaintiff to a justice of the peace, upon applying for an attachment against a defendant, stating that the application is made on the ground that the defendant "has assigned or secreted his property with intent to defraud his creditors," although according to the words of the statute, is insufficient, unless the facts and circumstances stated therein are enough to justify a belief that the defendant has assigned or secreted his property with intent to defraud his creditors. Frost v. Willard. The rule that a man may lose his own property by mixing it with the property of another, applies only to cases where the property of one can not be distinguished from that of the other, after the admixture. The sections of the statute declaring that upon every sale, assignment by way of mortgage, or mortgage of goods and chattels, there shall be a delivery and a continued change of possession, otherwise such sale, &c. shall be deemed fraudulent as against creditors, do not apply to any cases except when the goods and chattels have an existence, and can be delivered. When the contract relates to goods thereafter to be manufactured, it does not come within the meaning of the statute. In such case there must be fraud in fact, to render the contract void. Where the plaintiffs had possession of 190 barrels, 40 of which were their property, and under a contract with F. the manufacturer, they had an absolute right to sell the others, retain out of the proceeds what was due them from F., and account to him for the surplus, and the defendant, by virtue of an attachment against the goods of F. took the barrels out of the plaintiffs' possession; Held that the plaintiffs were entitled to recover the amount of their advances to F. TROVER, for a quantity of barrels, tried at the Essex county circuit in January, 1848, before Justice Paige. On the trial, George H. Blinn was called as a witness on the part of the plaintiffs, and testified that he lived at Port Henry and knew the plaintiffs, who lived in Bridport, Vt., and were merchants; the defendant lived in Port Henry; that he knew Bartholomew Foley, who lived at Port Henry. The plaintiffs' counsel then introduced in evidence the blotter of their store, or original book of entry, on which was a charge against Foley of $2,85, under date of Nov. 27, 1845, for goods that day sold him; below which was written a contract or agreement signed by Foley, in the words and figures following: "The above charge is made to Bartholomew Foley with full understanding and agreement that Frost & Rider are to have and hold and sell all the barrels that I make this season coming, of 1846, and all staves, poles and so forth are by said consideration to be Frost & Rider's, for the security of money, goods and so forth, which I may call on them to advance from time to time, to get stuff and carry on said business. When said barrels are sold to best advantage, Frost & Rider first to have their pay, and interest of the net proceeds of said barrels, and I have the VOL. IX. 56 Frost v. Willard. balance on settlement with them after said barrels are sold by them. BARTHOLOMEW FOLEY." (Signed) This witness proved the signature of Foley to the above contract; and he further testified that the plaintiffs paid him for Foley's board; that Foley boarded with him from April to Dec. 1846, and had no wife. That it amounted to rising of $50. Foley was engaged in making barrels. That he heard Frost give Foley orders to buy materials and draw on him, and he would advance all that was necessary to carry on the business. This was the fore part of August, 1846. The witness did not know how many he had made at that time. There were 160 or 180 headed in four hoops. Frost, at the time of this conversation, informed Foley and the witness that he then took possession of that stuff and the barrels then on hand-he put them into possession of John Byron. Byron was a cooper, and agreed to store what barrels were then made, and should be made afterwards. The barrels were then in his (Byron's) shop. Foley gave the witness a bill of sale of the barrels, dated 7th August, 1846, in order to secure a bill he had against Foley for board. The witness took possession of the barrels. The plaintiffs' counsel then presented in evidence said bill of sale, dated August 7, 1846. Also an assignment of said bill of sale from said Blinn to the plaintiffs, dated August 11, 1846, indorsed on the back of the bill of sale. The plaintiffs also produced and proved an agreement in writing given by them to said Blinn, bearing date on the same day, in the words and figures following: "We agree to pay G. H. B. one dollar and sixty-three cents for each week's board of B. F. during the time he may board, making and finishing our barrels. Dated Moriah, August 11, 1846. FROST & RIDER." The witness heard the defendant say, he took the barrels in October or November. There were about 180-some finished and some unfinished; the finished barrels were worth 62 cents and the unfinished 25 cents. The plaintiffs' counsel then called John Byron as a witness, who testified that in August, 1846, Frost agreed with him to store the barrels and the timber and take care of them. Frost v. Willard. Witness was That he took The witness Witness hired the shop at the time. Foley was to finish the barrels. They were put over head, in the upper part of the same shop. There was 100 and odd finished when the defendant took them-50 or 60 unfinished. not there when the defendant took them away. them the latter part of November or December. rented the whole shop from Foot. He told Foley he might work there, in the same shop and room with him. He put the barrels up above in loft, from time to time as he made them; they were occasionally carried down to be hooped, and then carried back again; that Mr. Meacham took 190 barrels down to the wharf; Mr. Rider came for them, and they drew them away. Forty of them were barrels that the witness made and sold to Frost & Rider. The plaintiffs agreed to pay the witness for the use of shop while Foley was finishing the barrels. The barrels which Blinn made and sold to the plaintiffs and those which Foley made were all put up in the shop together, and all carried together to the dock at one time. Rider was then present. Blinn delivered these barrels of his to Frost & Rider on a store debt that he owed them. The plaintiffs were to sell them and allow him the avails of what they sold for. The plaintiffs' counsel then called Wm. Meacham, who testified that Rider employed him to draw some barrels to the wharf of Mr. Foot of Port Henry; that he drew 190, and took them from the shop where Byron and Foley worked. Rider delivered them to him. A man by the name of Howard drew them away from the wharf. Willard, the defendant, forbade Rider taking them away. Saw this man Howard unload the barrels at Willard & Dowd's store. Willard was also there. The plaintiffs' counsel then recalled G. H. Blinn, who testified that he thought he saw Willard assist in loading the barrels. The barrels were left on Foot's wharf. Willard said it was his duty to take care of the property which he had attached. Willard was a constable of the town of Moriah. Howard refused to load the barrels. The defendant then took off his coat and loaded them. The plaintiffs' counsel then rested his case. On the part of the defendant was offered in evidence the rec |