
    Robert Braden et al. versus Richard Gardner
    A being the owner of three fourths, and B of one fourth, of a brig and cargo consigned to the master for sale in a foreign port, A draws a bill of exchange on the master, ordering it to be charged to himself. The bill is discounted and the money received by A. The master pays the bill out of the proceeds of the brig and cargo. B assigns his interest in the brig and cargo to C. Held, that A had no c aún against B’s interest, either by way of lien or set-off, to secure advances made by him to B before the brig sailed, or between that time and the assignment, or for a general balance of accounts; and that the burden of proof was on A, to show an agreement by B that the bill should be charged to the whole proceeds of the brig and cargo, and not to A’s share of the same.
    Assumpsit for money had and received. Trial before Wilde J. upon the general issue.
    The defendant owned three fourths, and T. H. Howland one fourth, of the brig Chatsworth and cargo, bound on a voyage to South America. On the 25th of January, 1822, the defendant drew a bill of exchange for 10,000 dollars on J. Bates, the master of the brig, to whom the brig and cargo were consigned for sale, and who paid the bill out of the proceeds of the brig and cargo. On the 8th of August, 1822, Howland assigned all his interest in the cargo to the plaintiffs, and on the 12th he assigned his interest in the brig to J. Morgan in trust, for the use of the plaintiffs ; and the plaintiffs claimed to have the bill charged on the defendant’s several proportion of the proceeds of the brig and cargo. This claim was contested by the defendant, and this action was instituted, by agreement of parties, for the purpose of determining the validity of the claim. The plaintiffs proved that the bill was discounted, and the proceeds paid over to the defendant, and that Howland paid for his full proportion of the cargo ; and that no part of the proceeds of the bill was appropriated for that purpose, or otherwise to his use. The defendant introduced evidence tending to prove that he was the agent of the owners in fitting out the brig.
    Upon this and other evidence in the case, it was left to the jury to determine, whether it was the understanding that the bill should be charged to the joint fund arising from the sales of the brig and cargo, or to the separate share of the defendant; the jury being instructed, that inasmuch as the bill was drawn by the defendant and ordered to be charged to him, the burden of proof was on him to satisfy them that there was an understanding that the bill should be charged to the joint fund. The defendant offered evidence to prove that Howland was indebted to him in a balance which still remained due and unpaid ; but the judge was of opinion, that no evidence of debts arising from transactions originating after the sailing ¡>f the vessel could be admitted in proof of such understanding, and it was rejected. The evidence of the state of the accounts between the defendant and Howland prior to that time was left to the jury, with the other evidence upon the question, whether there was any such understanding.
    
      March 19th
    
    
      March 26th
    A verdict was returned for the plaintiffs, and the defendant excepted to the foregoing opinions and instructions ; and if the whole Court should be of opinion that they were not correct, a new trial was to be granted ; otherwise judgment was to be entered according to the verdict.
    
      Welsh, for the defendant.
    
      Shaw and Bartlett, for the plaintiffs.
   Per Curiam.

We think it clearly proved, that the bil was drawn for the benefit and use of Gardner, and it doei not appear that the proceeds were applied to the purchase of the cargo ; on the contrary, it is testified by Howland, that he paid for the fourth part of the vessel and of the cargo, out of his own funds. If he gave notes, acceptances or bills which are not yet paid, it does not follow that Gardner had advanced beyond his due proportion for the cargo. Unless there were evidence from which it must necessarily be inferred, that the bill was drawn on account of the whole adventure, it would seem that the instruction to the jury was sufficiently favorable to the defendant; for it was left to them to decide upon the intent and understanding of the parties, notwithstanding that, by the terms of the bill, it would seem that there was no intent on the part of Gardner to charge any one but himself with the proceeds. The burden of proof was certainly upon him to show an intent different from tl is apparent one.

The defendant seems to consider, that he had a lien upon all the proceeds of the vessel and cargo to secure such advances as he may have made to Howland before the vessel sailed, and even between that time and the assignment by Howland to the plaintiffs in August 1822, or for any general balance of accounts in his favor; but there is no semblance of a lien in the case. The property or the proceeds were not in the hands of the defendant. Howland held his fourth part of the vessel and cargo by a separate and distinct title from Gardner’s three fourths, though under Gardner. He had the power of disposal at the time of the assignment, there being no attachment or lien of any kind existing then. The master was accountable to the assignees for Howland’s share, and a fourth part of the proceeds now belongs to the plaintiffs, who are the assignees.

We think, that admitting that Howland was indebted for the cargo at the time of the assignment, or that there was a final balance against him in favor of Gardner, still there is no power of set-off in this action, because it is now a question of property between the plaintiffs, as assignees, and the defendant; who, by virtue of the agreement under which the action is brought, can stand in no better condition than if the present action were brought against Bates the master, or the person who is the stakeholder of the funds.

Judgment according to verdict. 
      
       See Abbott on Ship. (4th Amer. ed.) 79, and n. (1); Collyer on Partn. bk. 5, c. 3, § 1; 3 Kent’s Comm. (3d ed.) 39, 40; Nicholl v. Mumford, 20 Johns. R. 611; S. C. 4 Johns. Ch. R. 522; Merrill v. Bartlett, 6 Pick 46; Thorndike v. De Wolf, 6 Pick. 120.
     