
    George Donnels versus Joseph Edwards, Principal, and John Chickering et al., Trustees.
    C and S being responsible for debts of E, took from him a bill of sale of a ship, in common form, and by an instrument of the same date promised to reconvey when the claims of each should be discharged. The debts paid by both exceeded the value of the ship, but those paid by C were less than half of that value. Held, that they took, not by moieties, but in proportion to their respective claims, and that C therefore could not be charged in foreign attachment for the difference between the sum paid by him and half the value of the ship.
    Chickering and Sweetser, who were summoned as trustees, disclosed in their answers the following facts. On the 13th of March, 1824, Edwards gave them a bill of sale of the brig Margaret, in common form. On the same day Chickering and Sweetser gave Edwards an instrument of defeasance, as follows : “ We &c. have received &c. a bill of sale of the brig Margaret, dated &c., as collateral security for our indorsements and liabilities of all kinds for the said Joseph Edwards, and also for all demands which we may hereafter have against him &c., either or both of us, &c. And we &c. [agree] to reconvey &c., so soon as he &c. shall have discharged all and every demand &c. which we and either of us &c. have or may have against him, &c., and the said Edwards shall have right hereby to demand such reconveyance, when we &c. together and both separately shall have no demand whatever against him,” &c. On the 12th of August, 1824, which was after the service of the writ, Edwards made the bill of sale absolute, in consideration of the sum of about 3,800 dollars for debts and liabilities to that amount already discharged by Chickering and Sweetser, the securities for which were then given up to Edwards. Sweetser at the time of answering still continued to hold notes due from Edwards, which he had been compelled to discharge, to the amount of more than 1,700 dollars. The demands of Chickering and Sweetser against Edwards were all separate. Those of Chickering amounted to about 1,748 dollars.
    And now Gerrish, for the plaintiff,
    contended that Chickering was chargeable as trustee for the difference between that sum and 1,900 dollars, Half of the estimated value of the vessel, on the ground that the bill of sale conveyed a moiety to each vendee. To show that a person holding a pledge might be summoned as a trustee, he cited Pierson v. Weller, 3 Mass. R. 564 ; Thomas v. Goodwin & Trs., 12 Mass. R. 140; N. E. Mar. Ins. Co. v. Chandler & Tr., .16 Mass. R. 279.
    
    
      Cummins, for the trustees,
    contended that they did not take by moieties, but in proportion to their respective claims against the vendor, according to the deed of defeasance ; and that the vessel was pledged without a power to sell; on either of which grounds the trustees must be discharged He cited Erskine v. Townsend, 2 Mass. R. 493 ; Jackson v Green, 4 Johns. R. 186 ; Brown v. Bement, 8 Johns. R 76 ; Badlam v. Tucker, 1 Pick. 400.
    
      
       See Revised Stat. c. 90, § 78.
    
    
      
       See Hudson v. Hunt, 5 N. Hamp. R. 538 ; Howard v. Card, 6 Greenl. 353 ; Story on Bailments, 213. But see St. 1829, c. 124 ; Williams v. Schooner St. Stephens, 14 Martin’s (Louis.) R. 22.
    
   Parker C. J.

said the Court were of opinion that the trustees held under the bill of sale in proportion to their respective demands against the vendor; that taking a joint security did not make them joint owners each of a moiety, the object being to secure their debts.

Trustees discharged.  