THOMPSON, Circuit Justice.
The facts upon which this case must turn, are to be collected from the bill and answer, one witness only having been examined, barely to prove the execution of an assignment by George De Wolf to the complainant
The object of the bill is for a discovery and account of the proceed of the cargo of the ship Superior, one-tliird of which the complainant claims under George De Wolf. [576]*576From the bill and answer it appears, that in September, 1S25, the defendants purchased the ship Superior and her cargo, on account of themselves, and Jacob Smith and George Be Wolf, in equal third parts; that it was agreed between the parties, that Smith should go as master and supercargo, the outward cargo to be consigned to Smith. The defendants made all the advances both for ship and cargo, and were constituted the agents and factors in Kew York for the several parties, and the return cargo was to be consigned to them for sale, on account of the concern. On the 3d of October, after the ship sailed on her voyage, George Be Wolf wrote the defendants to send him a statement of the costs of the ship and cargo, and when due, that he might remit his proportion. On the 20th of October the defendants sent him the amount, and drew on him two bills of exchange—one for the one-third of the cost of the ship, and the other for one-third the amount of the cargo, payable at the average times when the payments for the ship and cargo would fall due. The only question now before the court relates to the cargo, the bill for which bears date on the 10th of October for $4,297.97. payable on the Sth of January then next. This bill wras accepted by George Be Wolf, and returned to the defendants, who still hold the same, it never having been negotiated by them or in any manner whatever paid or satisfied. George Be Wolf failed some time in the month of Becember, and on the 22d of that month he transferred his interest in the ship and cargo, then at sea, to the complainant, the consideration for which was the payment, by the complainant, of a note which he had endorsed for George Be Wolf, dated the 4th of October, 1825.
These are the leading facts in the case. There are others which have a strong bearing upon the result, which will be noticed hereafter; and the main question, under these circumstances, is, whether the defendants have a right to retain, out of the proceeds of the return cargo, enough to satisfy themselves for their advances for George Be Wolf, on the purchase of the outward cargo; or wliei her the complainant is entitled to the same under his assignment from George Be Wolf. The parties interested in this adventure cannot be considered partners,2 but must be deemed tenants in common, each one having a right over his separate share,, according to the rules of law applicable to. such an interest in chattels, and not to be-governed by the law of partnership. This-would be the obvious conclusion, from the-particular arrangement between the parties, in this case, and is the light in which the-law generally considers such adventures Jackson v. Robinson [Case No. 7,144], and cases there cited; 4 Pick. 456, 457; Term R. 119, 783.
The defendants, so far as respects the interest or share of George Be Wolf, must be considered bis agents or factors. They were-expressly so constituted by the original arrangement between the parties, and the re[577]*577turn cargo came consigned to them, according to the express agreement between the parties. This would clearly give to the defendants a right to retain for their advances. Particular liens of factors are rather favored in the law, as being for the convenience and benefit of trade. They sometimes grow out of the express contract between the parties, and sometimes are implied, from the usage of trade, or the manner of dealing between the parties in the particular case. In Bradford v. Kimberly, 3 Johns. Ch. 431, it is said to be well settled, that a factor may retain the goods or the proceeds not only for the charges incident to that particular cargo, but for the balance of his general account; and this allowance is made not only whilst the goods remain in specie, but after they are converted into money; and that this is a very equitable doctrine, especially when the acceptances and responsibilities were assumed, or necessarily presumed to have been assumed, upon the credit of the property in his possession. The language here used applies with peculiar force to the ease now before the court, and is sustained by the well-settled law applicable to the rights of factors: and, indeed, this general principle did not seem to have been questioned on the argument; but the main point pressed upon the court, and which indeed presents the only difficulty in the case, is, whether the bill drawn upon George De Wolf by the defendants, for their advances on his account, was [578]*578not a waiver of tlioir lien. If the complainant is chargeable with notice of the defendants’ claim upon the proceeds of the cargo, he can stand in no better situation than George De Wolf himself would have stood in; and that ho is chargeable with such notice would seem fairly inferable from his own statement in the bill. He states that the parties in interest were each owners of one-third part of the cargo, and that the bill of exchange was drawn by the defendants upon G. De Wolf for their advances and disbursements for his one-third part of the cargo, and made payable on the Sth day of January then next, which was some time after the assignment made by G. De Wolf to the complainant. He must, therefore, have known thatthe defendants made the advances for the purchase of the outward cargo, and that they had not been reimbursed for the same. The bill does not allege any want of notice; nor could the complainants have been misled by any apparent ownership in George De Wolf. He had. in no sense whatever, the possession of the goods; nor was it a purchase made by the complainants, but only an assignment for a pre-existing debt —a mere security from an insolvent debtor. He lias, therefore, no superior equity upon which he can rest his claim to overreach the lien of the defendants. If George De Wolf ivas the party before the court, he would come with a very ill grace calling for these proceeds without reimbursing the defendants for their advances, as between them the drawing and accepting the bill was manifestly a mere mode of payment; it did not extinguish the original contract The defendants might have brought their action against him for the advances, and surrendered up this bill. The bill was made payable at the time when payment for the purchase of the cargo fell due; and there are no circumstances tending in any measure to show that the bill was intended as a substitute for the lien which the defendants had upon the cargo and its proceeds. And if, as has been already observed, the complainant stands in no better situation than G. De Wolf would, he, as assignee, must take these proceeds, subject to the same equity to which they were subject in the hands of the assignor. 1 P. Wms. 490; 1 Vern. 691, 764; 1 Ves. Sr. 120; 4 Ves. 121; 2 Johns. Ch. 448; Ross v. The Active [Case No. 12.070]; U. S. v. Sturges [Id. 16,414].
It is not to be denied that some of the cases to be found in the books go very far in asserting, as a general proposition, that as to personal chattels an implied lien is waived by taking security for the debt But no case has fallen under my observation to sustain such an unqualified mle; they are always attended by circumstances indicating that such was the intention of the parties. The case of Cowell v. Simpson, 16 Ves.
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THOMPSON, Circuit Justice.
The facts upon which this case must turn, are to be collected from the bill and answer, one witness only having been examined, barely to prove the execution of an assignment by George De Wolf to the complainant
The object of the bill is for a discovery and account of the proceed of the cargo of the ship Superior, one-tliird of which the complainant claims under George De Wolf. [576]*576From the bill and answer it appears, that in September, 1S25, the defendants purchased the ship Superior and her cargo, on account of themselves, and Jacob Smith and George Be Wolf, in equal third parts; that it was agreed between the parties, that Smith should go as master and supercargo, the outward cargo to be consigned to Smith. The defendants made all the advances both for ship and cargo, and were constituted the agents and factors in Kew York for the several parties, and the return cargo was to be consigned to them for sale, on account of the concern. On the 3d of October, after the ship sailed on her voyage, George Be Wolf wrote the defendants to send him a statement of the costs of the ship and cargo, and when due, that he might remit his proportion. On the 20th of October the defendants sent him the amount, and drew on him two bills of exchange—one for the one-third of the cost of the ship, and the other for one-third the amount of the cargo, payable at the average times when the payments for the ship and cargo would fall due. The only question now before the court relates to the cargo, the bill for which bears date on the 10th of October for $4,297.97. payable on the Sth of January then next. This bill wras accepted by George Be Wolf, and returned to the defendants, who still hold the same, it never having been negotiated by them or in any manner whatever paid or satisfied. George Be Wolf failed some time in the month of Becember, and on the 22d of that month he transferred his interest in the ship and cargo, then at sea, to the complainant, the consideration for which was the payment, by the complainant, of a note which he had endorsed for George Be Wolf, dated the 4th of October, 1825.
These are the leading facts in the case. There are others which have a strong bearing upon the result, which will be noticed hereafter; and the main question, under these circumstances, is, whether the defendants have a right to retain, out of the proceeds of the return cargo, enough to satisfy themselves for their advances for George Be Wolf, on the purchase of the outward cargo; or wliei her the complainant is entitled to the same under his assignment from George Be Wolf. The parties interested in this adventure cannot be considered partners,2 but must be deemed tenants in common, each one having a right over his separate share,, according to the rules of law applicable to. such an interest in chattels, and not to be-governed by the law of partnership. This-would be the obvious conclusion, from the-particular arrangement between the parties, in this case, and is the light in which the-law generally considers such adventures Jackson v. Robinson [Case No. 7,144], and cases there cited; 4 Pick. 456, 457; Term R. 119, 783.
The defendants, so far as respects the interest or share of George Be Wolf, must be considered bis agents or factors. They were-expressly so constituted by the original arrangement between the parties, and the re[577]*577turn cargo came consigned to them, according to the express agreement between the parties. This would clearly give to the defendants a right to retain for their advances. Particular liens of factors are rather favored in the law, as being for the convenience and benefit of trade. They sometimes grow out of the express contract between the parties, and sometimes are implied, from the usage of trade, or the manner of dealing between the parties in the particular case. In Bradford v. Kimberly, 3 Johns. Ch. 431, it is said to be well settled, that a factor may retain the goods or the proceeds not only for the charges incident to that particular cargo, but for the balance of his general account; and this allowance is made not only whilst the goods remain in specie, but after they are converted into money; and that this is a very equitable doctrine, especially when the acceptances and responsibilities were assumed, or necessarily presumed to have been assumed, upon the credit of the property in his possession. The language here used applies with peculiar force to the ease now before the court, and is sustained by the well-settled law applicable to the rights of factors: and, indeed, this general principle did not seem to have been questioned on the argument; but the main point pressed upon the court, and which indeed presents the only difficulty in the case, is, whether the bill drawn upon George De Wolf by the defendants, for their advances on his account, was [578]*578not a waiver of tlioir lien. If the complainant is chargeable with notice of the defendants’ claim upon the proceeds of the cargo, he can stand in no better situation than George De Wolf himself would have stood in; and that ho is chargeable with such notice would seem fairly inferable from his own statement in the bill. He states that the parties in interest were each owners of one-third part of the cargo, and that the bill of exchange was drawn by the defendants upon G. De Wolf for their advances and disbursements for his one-third part of the cargo, and made payable on the Sth day of January then next, which was some time after the assignment made by G. De Wolf to the complainant. He must, therefore, have known thatthe defendants made the advances for the purchase of the outward cargo, and that they had not been reimbursed for the same. The bill does not allege any want of notice; nor could the complainants have been misled by any apparent ownership in George De Wolf. He had. in no sense whatever, the possession of the goods; nor was it a purchase made by the complainants, but only an assignment for a pre-existing debt —a mere security from an insolvent debtor. He lias, therefore, no superior equity upon which he can rest his claim to overreach the lien of the defendants. If George De Wolf ivas the party before the court, he would come with a very ill grace calling for these proceeds without reimbursing the defendants for their advances, as between them the drawing and accepting the bill was manifestly a mere mode of payment; it did not extinguish the original contract The defendants might have brought their action against him for the advances, and surrendered up this bill. The bill was made payable at the time when payment for the purchase of the cargo fell due; and there are no circumstances tending in any measure to show that the bill was intended as a substitute for the lien which the defendants had upon the cargo and its proceeds. And if, as has been already observed, the complainant stands in no better situation than G. De Wolf would, he, as assignee, must take these proceeds, subject to the same equity to which they were subject in the hands of the assignor. 1 P. Wms. 490; 1 Vern. 691, 764; 1 Ves. Sr. 120; 4 Ves. 121; 2 Johns. Ch. 448; Ross v. The Active [Case No. 12.070]; U. S. v. Sturges [Id. 16,414].
It is not to be denied that some of the cases to be found in the books go very far in asserting, as a general proposition, that as to personal chattels an implied lien is waived by taking security for the debt But no case has fallen under my observation to sustain such an unqualified mle; they are always attended by circumstances indicating that such was the intention of the parties. The case of Cowell v. Simpson, 16 Ves. 278, which has been much relied upon, turned upon the particular circumstances leading to the conclusion that the lien was intended to be waived. There was a credit of three years given in the note taken, and this was considered of great weight by the court to show the understanding of the parties. And this, together with the inconvenience it would occasion to hold the lien for such a length of time, were the controlling circumstances which governed the decision in that case; and that the rule was here carried to its full extent would seem inferable from what fell from the court in Stevenson v. Blakelock, 1 Maule & S. 541, where it is said it is unnecessary to canvass the doctrine in that case, for then the bills were running, and there was no reason to presume they would not be paid; but in this case the bills have been refused payment, which places the defendant in the original situation as to the lien. This latter remark applies directly to the case now before the court. The bill has not been paid by George De Wolf, and he became insolvent -before it fell due, and the defendants ought, upon every principle of justice and equity, to be placed in their original situation as to the lien. So far as the mere circumstance of taking a note or bill may be considered as indicative of an intention to waive an implied lien, it is not perceived that any solid distinction can exist between the cases of an implied lien which the vendor of real estate has for the purchase-money, and an implied lien upon a chattel; and in the former description of cases it is laid down in Garson v. Green, 1 Johns. Ch. 308, that the taking a note for .the purchase-money does not affect the vendor's lien. See. also, 1 Schoales & L. 132; 6 Ves. 752; 15 Ves. 329. Where a distinct and independent security is taken either of property or the responsibility of a third person. it might very fairly be construed a waiver of the implied lien. Every case must, therefore, depend, in a great measure, upon its own circumstances, with a view to ascertain the intention of the parties. And this case furnishes no circumstances warranting the conclusion that the defendants intended to waive their lien, and reiv upon'the personal security of George De Wolf.
This lien must, however, be limited to their advances and disbursements for George De Wolf, on account of the outward cargo, and not for the general balance of their account against him. They were not acting in the character of general factors, but constituted such under the particular arrangement in relation to this adventure. The defendants must therefore, account, to the complainant for tiie net proceeds of one-third part of the outward and return cargoes, after deducting all legal and customary charges thereon. A decree' must, accordingly, be entered con-formably to the principles here laid down. See Murray v. Lazarus [Case No. 9,962].