The first inquiry is, was the affidavit sufficient to warrant the attachment ? It is stated. in the affidavit “ that the application for an attachment against the property of the said Bartholomew Foley which accompanies this affidavit, is made on the ground, that the said Bartholomew Foley has assigned or secreted his property with intent to defraud his creditors’’ This is according to the words of the statute, *446but it is not to be supposed that the deponent intended to swear to a fact within his knowledge, that Bartholomew Foley had assigned or secreted his property, with intent to defraud his creditors. Bartholomew Foley’s intent could hot be known to the deponent; and an affidavit in the words of the statute has repeatedly been held insufficient. (Ex parte Robinson, 21 Wend. 672.) In that case proceedings were had against an absconding debtor. And by the statute, (1R. E. 765, § 1,) authorizing such proceedings, an application must be made in writing, verified by the affidavit of the creditor, stating amongst other things, “ the grounds upon which the application is founded.” “ The facts and circumstances to establish the grounds on which such application is made shall also be verified by the affidavit of two disinterested'witnesses.” The witnesses, in that case, stated that the debtor “ had left the state with intent to defraud his creditors.” That was the fact to be proved; yet the court held the affidavit insufficient, because the facts and circumstances stated in the affidavit did not prove the grounds upon which the application was made.
In the case before the court, it is alledged in the affidavit that the application for the attachment was made “ on the ground that the said Bartholomew Foley had assigned or secreted his property with intent to defraud his creditors and the affidavit was insufficient unless the facts and circumstances stated therein were sufficient to justify a belief that the debtor had assigned or secreted his property with intent to defraud his creditors. I have read the affidavit attentively, and can not discover that the deponent has stated a single fact or circumstance tending to prove that the debtor had either assigned or secreted his property with intent to defraud his creditors. The affidavit furnishes no evidence that Foley had assigned or secreted his property at all. The affidavit shows that the object in obtaining the attachment was, to prevent the barrels which Foley had made and was making from being transported to Vermont.
Although the affidavit was insufficient, the attachment would have protected the defendant against any action which might" have been brought by Foley. But the attachment only author*447ized the defendant to take the goods of Foley. The barrels in question were the property of the plaintiffs, as between them and Foley; and the defendant, in order to make out a defense, must show that the barrels were the property of Foley, as between them and Foley, and the defendant, in order to make out a defense, must show that the barrels were the property of Foley, as between him and the plaintiffs. The judge rightfully decided that the affidavit was insufficient.
The next question is, ought the defendant’s motion for a non-suit to have been granted 7 The plaintiffs proved that they had possession of the barrels, before the attachment was issued, and as to forty of the barrels their title could not be questioned, unless they had lost their title because they put the forty barrels which they purchased of Mr. Byron with those made by Foley. There is no evidence in the case to show that the barrels made by Byron and those made by Foley could not easily be distinguished. 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. (3 Black. Com. 405, ch. 26, § 7.) One case there put by way of showing the rule, is where one casts his gold into another’s melting pot or crucible; in such case, for the-purpose of guarding against fraud, the law gives the whole to the owner of the pot.
“ The counsel for the defendant asked the court to charge the jury that if they believed there was no change of possession of the barrels they should find for the defendant. The court refused so to charge, and the defendant’s counsel excepted.”
Unless the court was bound to charge precisely as requested, there was no error in refusing so to charge. In this case there were forty barrels of which Foley never had possession. And had the court charged as requested it would have been erroneous, and the court’s refusal to charge as requested was correct.
The remaining question is, was the charge of the court such that a new trial on that account ought to be granted 7 The substance of the charge was that the plaintiffs were entitled to recover the amount of all their advances to Foley; which the. *448parties agreed amounted to $83. The whole merits of the case were covered by this charge, and if upon the whole case the plaintiffs were not entitled to recover, the charge was erroneous, and a new trial ought to be granted.
One objection made to the plaintiffs’ right to recover was, that the written contracts or mortgages under which they claimed , had not been recorded in the town clerk’s office. By 2 R. S. 2d ed. 70, § 5, it is declared, “ every sale made by a vendor of goods and chattels in his possession, or under his control, and every assignment of goods and chattels by way of mortgage or security, or upon any condition whatever, unless the same be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things sold, mortgaged or assigned, shall be presumed to be fraudulent and void as against” &c. And by the 9th section it is declared that “ every mortgage, or conveyance intended to operate as a mortgage, of goods and chattels, hereafter made, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void, unless the mortgage or a true copy thereof shall be filed,” &c. It will be perceived that neither of these sections can be applied to any cases except when the goods and chattels respecting which the contract is made have an existence and can be delivered. When the contract relates to goods thereafter to be manufactured, it can not come within the meaning of the statute. In such case there must be fraud in fact, to render the contract void.
In this case the contract between the plaintiffs and Bartholomew-Foley was made in the fall of 1845, and so far as this case is concerned, related to barrels to be made in 1846; and the contract on the part of Foley was that the barrels which he should make during the season of 1846 should be the property of the plaintiffs, as security for money and goods which he might call on them to advance from time to time to get stuff and carry on said business. They were to sell the barrels, retain the sums due to them, and pay the surplus to Foley. The public good requires that contracts of this kind should be upheld. When a *449manufacturer is unable to prosecute Ms business without aid from others, the industry of the country may be materially promoted by allowing him to pledge his future earnings to those who will make advances to Mm. The sections of the statute above referred to can have no application to contracts of that description.
The barrels respecting which the contract in this case was made had no existence when the contract was made. They could not therefore have been delivered. They were not to be manufactured until the next season. And as early as the 11th of August,” 1846, the plaintiffs had the actual possession of the barrels ; and this was moré than three months before the attachment was issued.
The case is briefly tMs : the plaintiffs had possession of 190 barrels, 40 of which were their property—and they had an absolute right to sell the others, retain out of the proceeds what was due from Foley, and account to Mm for the surplus : and the defendant, by virtue of an attachment against the goods of Foley, took the barrels out of the plaintiffs’ possession, and the court rightfully held that the plaintiffs were entitled to recover the amount of their advances.
The motion for a new trial must therefore be denied.