
    * James Beaumont versus Elijah Crane.
    One advancing money to the constructor of certain machines, to enable him to accomplish the same, under an agreement that the person so advancing his money should have a share in the machines equal to the advances so by him made, becomes thereby tenant in common therein with the constructor.
    This action was assumpsit for money had and received. At the trial, which was had on the general issue before Wilde, J., at the last February term in this county, the plaintiff proved that one Morse, wishing to make two carding-machines, applied to the plaintiff, previous to the year 1816, for assistance and advancements to enable him to accomplish that object; and that the plaintiff thereupon advanced to him sundry materials for the construction of said machines, of the value of 80 dollars 50 cents, he, the said Morse, then agreeing that the plaintiff should have a share in the said two machines, equal to that amount in value. Afterwards, on the 2d day of January, 1816, the said Morse signed a written agreement of that date for securing the plaintiff in the property and possession of one of said machines, the other having been by him previously sold; and at the same time he authorized the plaintiff to sell said machine, and after paying himself for said advances, to pay over the remaining proceeds of such sale to said Morse. Whereupon the plaintiff gave to Morse a receipt in full for said advances.
    At this time the said machine was in a house occupied by one Wheatly ; no formal delivery of it was made ; and it could not be removed from said place of deposit without taking it in pieces and considerably injuring it.
    After these transactions, the said Wheatly, having a just demana against the said Morse, caused the said machine to be attached as Morse’s property, and delivered his execution to the defendant, then sheriff of this county, with orders to levy the same on the said machine ; in pursuance of which orders the defendant sold the same for 130 dollars. Previous to the said sale, the plaintiff gave notice to the defendant of his interest in the machine, and forbade him to sell his share therein; and after the sale demanded of him his share of the money, and requested him not to pay over any' part of the money to Morse. The defendant had * executions against Morse at that time to a greater amount than 130 dollars.
    A verdict was taken for the plaintiff by consent of the parties ; and if the Court shall be of opinion, on the above facts, that the plaintiff had any property in the said machine, or any right to the possession thereof, as a security or pledge for his advances made to 
      Morse, judgment was to be entered on the verdict; otherwise the plaintiff" was to become nonsuit.
    
      T. Fuller, for the plaintiff".
    The weakest ground on which the plaintiff’s right can be placed is to consider the machine as a pledge for the money advanced by him. To secure the lien in a pledge, a formal delivery is not always necessary: it is enough that it be placed within the control of the pledgee. The case shows this machine not to have been in the possession of Morse, and to have been accessible to the plaintiff. The case of Jewett vs Warren 
       was a much stronger case than the present, in this point of view; for there the administrator of the pledgor held the actual custody and possession of the chattels. The pledge, in that case, was for a preexisting debt, or rather liability, and not so much to be favored as where the debt, as in this case, was incurred in creating the pledge itself.
    But the machine, in this case, cannot be considered as a pledge, as it wants the essential character of being collateral security. Here Morse’s debt was extinguished by the plaintiff’s receipt in full, if, indeed, any had previously existed. That receipt, however, could not have been necessary, as the original agreement gave the plaintiff a share in the machines; and the writing was merely evidence of the limiting of the tenancy in common to one machine, which Defore extended to both. It was not a sale, as the plaintiff already held his interest in common with Morse. 
      
    
    Further, if Morse had sold a share only, and retained the remainder, a delivery would not have been necessary; since he would have as much right, and, in point of value, a much larger share, than the plaintiff. But he * did not, in fact, retain the possession; and it is clear that the plaintiff had as well the power, as the right, to sell and transfer his interest in the machine. Still less was a formal delivery necessary, where the plaintiff’s right commenced at the same time with Morse’s; and there is no pretence that Wheatly, or any one else, gave credit to Morse. in consequence of the machine in question.
    
      Chickering, for the defendant,
    argued that, whether this were considered as a pledge or not, the want of a delivery, and consequent possession on the part of the plaintiff, was fatal.  In the case of Jewett vs. Warren, the court said there was all the delivery which could have been usefully made of property of that nature. But that was not the case here. The transfer was a fraud on Wheatly ; 
      as it prevented him, by his reliance on this property, as belonging to Morse, from resorting to other means for securing his debt. He was entitled to notice of the plaintiff’s claim ; and if the transaction was fraudulent as to him, it was so as to all.
    
      
      
         12 Mass. Rep. 300.
    
    
      
       2 Lord Raym. 916, 917, Coggs vs. Bemar l.
      
    
    
      
       10 Mass. Rep. 308, Men vs. Smith. — 2 D. & E. 587, Edwards vs. Harben, Ert — 1 Atk. 614. — 1 Campb. 332.
    
   Parker, C. J.

We are of opinion that, under the peculiar circumstances of this property, an interest passed to the plaintiff, without any manual delivery. The machine stood in the house of JVheatly for safe-keeping only Before the attachment at his suit, an agreement in writing was made, the purport of which was, that the plaintiff should have a property therein, in the proportion that the sum advanced by him would bear to the whole value. Of this the sheriff had notice before he sold on execution, and he is accountable to the plaintiff for the amount of his interest, which is ascertained by the verdict.

We come to this conclusion because the advance by the plaintiff, for the materials and expense of the construction of the machines, upon an agreement, entered into before the machines were made, that he should be secured by the ownership of a part of the machines, made him originally tenant in common • with Morse; and the subsequent agreement in writing was nothing * more than a confirmation of the first bargain, settling the whole interest of the plaintiff in the one machine, instead of both.

There are no circumstances in the case authorizing a suspicion of fraud; and the notice to the sheriff, before he sold, gave him an opportunity to obtain indemnity from the judgment creditor.

Judgment on the verdict  