
    John P. Rice versus Nathaniel Austin.
    Where the property contested in an action will go, in the event of the plaintiff’s prevailing, to lessen a debt due to him from one offered as a witness, and in a contrary event, the witness will receive the value of the property in money, he is a competent witness for the plaintiff.
    What degree or kind of possession of bulky articles is necessary to give the party a lien.
    An agreement to share the profits of an adventure does not in all cases necessarily constitute a copartnership.
    This was trespass against the defendant, sheriff of the county of Middlesex, for taking 1650 feet of live oak timber, alleged to be the property of the plaintiff. The defendant pleaded the general issue, and filed a brief statement of his defence, according to the form of the statute; setting forth that he took and attached the timber, as the property of one Hugh Lindsay, by force of a writ of attachment * against him at the suit of one [ * 198 J Samuel Larned, and that the timber was the property of Lindsay, and not of the plaintiff.
    At the trial before Jackson, J., the deposition of Lindsay was offered by the plaintiff. Its admission was objected to, on the ground that he was interested in the event of the suit. In support of this objection, the defendant relied on certain facts stated by Lindsay in the deposition ; but it appearing therefrom that he was indebted to the plaintiff, as well as to Larned; that the timber (which had once been the property of Lindsay) would go to pay either what he owed to the plaintiff, or what he owed to Lamed; and that whichever party prevailed in this suit, Lindsay would remain indebted to the other; it appeared to the judge that he stood indifferent between them, and was a competent witness, and the deposition was admitted.
    It was in evidence that, on the 29th of August, 1817, Lindsay contracted with the commissioners of the navy of the United States, for the sale and delivery of a certain quantity of live oak timber, to be delivered at any of the navy-yards that should be designated. Lindsay, not having funds to carry on the business, agreed with the plaintiff to admit him to a participation of the profits that should accrue from the same,-on the following terms, viz., that Lindsay should go to Florida and superintend the purchase and lading of the timber, and should consign it to the plaintiff, to be delivered according to the contract with the commissioners; and that the plaintiff should advance to Lindsay, from time to time, such sums of money as should be necessary to fulfil that contract, not exceeding in the whole 5000 dollars; that the plaintiff should receive the money to be paid on this account by the commissioners of the navy, and should account with Lindsay for one half of all the profits accruing therefrom. This contract was entered into on the 16tb of September, 1817. Lindsay also gave to the plaintiff a power of attorney, dated on the 7th of October, 1817, to [ * 199 ] receive all moneys that might be due *to him from the United States in pursuance of the first-mentioned contract.
    
      Lindsay testified, in his deposition, that it was soon found that the said 5000 dollars was insufficient for the purpose, and that he drew on the plaintiff, from time to time, for further sums, which were paid, on an agreement that the plaintiff should be allowed eight per cent, on all that was so advanced, above the sum of 5000 dollars. Lindsay proceeded to Florida, and shipped, from time to time, sundry cargoes of timber pursuant to his contract, all of which were ordered by the commissioners to the navy-yard in Charlestown, in this state. They were all consigned to the plaintiff in pursuance of the agreement, and the invoices were made out on the account and risk of the plaintiff, who received payment from the navy agent for all that was delivered.
    
      Lindsay testified that the plaintiff was not concerned with him in the original contract, nor answerable for the performance of it; but was merely his agent and factor, to receive and deliver the timber, having a right to receive payment therefor, to reimburse his advances and to pay him for his services; the one half of the profits that the plaintiff was to receive being allowed as a commission therefor. In the course of the business, the plaintiff, and other merchants in different places, hired vessels for Lindsay, to proceed to Florida and bring the timber to Charlestown; and others were hired by Lindsay himself.
    The timber, which was the subject of this suit, was the cargo of the schooner Morning Star, shipped by Lindsay in Florida, in January, 1819, and consigned to the plaintiff or his assigns, he or they paying freight therefor 500 dollars. The invoice and bill of lading were in the usual form, on the account and risk of the plaintiff. The vessel arrived at Boston, on the 17th of February, and the master called on the plaintiff, who directed him to proceed to the navy-yard. The master proceeded accord ingly to Charlestown; but before he reached the navy-yard, viz., on the *20th of February, the defendant [ * 200 ] made the attachment of the timber, for which this action was brought.
    The plaintiff was not on board the vessel after her arrival at Boston, and before the said attachment. The defendant, when he made the attachment, gave security to the master for the payment of the freight, and afterwards paid the same. The plaintiff after-wards expressed to the master his regret that the master had not delivered the timber to him, and that he, the plaintiff, had not paid the freight.
    By the contract between Lindsay and the commissioners of the navy, they were to have an agent in Florida to furnish moulds by which the timber should be cut or hewn, and to take an account of what was so prepared in that country; but the navy agent at Charlestown was to pay only for what should be delivered at the navy-yard, and according to an account and admeasurement to be made at the navy-yard; and the navy agent had no concern with the timber, until so delivered. The timber in question was cut and prepared in this manner, and an account of it transmitted to the navy agent in Charlestown.
    
    The price, according to the contract, of the whole timber to be delivered by Lindsay, was 80,000 dollars, or upwards; and on the said 18th of February, 1819, the amount delivered and paid for was 45,000 dollars. On the day last mentioned, there was due from Lindsay to the plaintiff, a balance of 15,271 dollars, on their accounts respecting this business. The balance varied afterwards, as the business went on, being in March, 1819, upwards of 17,000 dollars, in October, 1819, about^ 4800 dollars, and in November, 1819, about 8000 dollars.
    The plaintiff claimed the timber in question, as having a lien on it for the balance then due him; and as having possession in virtue of the contract between him and Lindsay, and by force of the bill of lading and the proceedings relative thereto.
    The defendant contended that the plaintiff never had a right to such a lien as he claimed; and if he had, that the [ * 201 ] * timber never came to his possession, so as to give effect and operation to such lien; or that he had parted with the possession, and lost his lien, before the attachment was made. Also that, if the plaintiff was not a mere agent and attorney of Lindsay, and if he had any interest or property in the timber, it was an interest as a partner with Lindsay, which would not entitle him to maintain this action.
    The judge instructed the jury, that, by force of the contract between the plaintiff and Lindsay, and of the bill of lading, the plaintiff had a lien on the timber, towards the said balance then due him; and that he had, before and at the time of the attachment, such a possession as would give effect and operation to that lien; and as to the supposed partnership, that the plaintiff had such an interest and property in the timber, as would entitle him to maintain this action; he having a right to the possession of the timber, and to receive the price of it from the navy agent, to the exclusion of Lindsay, and to apply the money so received towards the discharge of the balance due to him from Lindsay.
    
    As to damages, the jury were instructed that the plaintiff was entitled to the price he would have received from the navy agent, deducting the freight, which he must have paid in that case, and which had been paid by the defendant, with interest from the time when that money would have been received; and that, in an action of this kind, the jury were authorized to give such damages as they should think just and reasonable; but that in this case there was no claim for vindictive or exemplary damages, as it appeared to be a struggle between two creditors of Lindsay, which should secure his debt out of this fund ; that it might, however, be thought unreasonable that the defendant, or the creditor for whom he acted, should try this experiment at the expense of the plaintiff; and if the jury thought it proper, under all the circumstances, they were at liberty to add to [ * 202 ] the damages a reasonable sum, to indemnify * the plaintiff for the expenses incurred by him in prosecuting this action.
    The jury found a verdict for the plaintiff for 1431 dollars, 73 cents, and on being inquired of, they stated that they had included in the damages 75 dollars, for the plaintiff’s expenses as above mentioned.
    The defendant moved for a new trial on account of the several opinions and directions of the judge, as above stated; and also on account of the admission of Lindsay's deposition.
    
      W. Sullivan and Alden, for the defendant.
    The plaintiff had no lien upon the timber in question, since he had no possession, which is always necessary to the existence of a lien . The timber was in effect sold to the government, or, at the least, government had a legal interest in it, from having furnished the moulds by which it was cut, and provided and maintained an agent, who superintended the work in Florida; while the plaintiff was here, the agent of Lindsay, to attend to his interest in the concern, and to see that the persons in his employment here performed their duty. But he had no authority to sell the timber.
    But if he had any possession or control of the property, it was only as the partner of Lindsay, in which case he cannot maintain this action. The agreement to share the profits of the concern between them, proves the relation of partners . And persons may be partners as to strangers, while they are not in fact such as to each other .
    
      Lindsay was an incompetent witness. He was interested in the event of the suit; for he had every reason to prefer that the timber should be delivered to the navy agent, who would immediately put him in cash for the value of it, rather than that it should go to the partial discharge of an old debt.
    The evidence of Lindsay was inadmissible, too, inasmuch as it went to contradict, to alter, or to control the written agreement between him and the plaintiff.
    *The instructions to the jury on the subject of damages [ * 203 ] were incorrect, and the verdict found pursuant to them is therefore wrong. This was a fair subject for litigation, and fur nished no ground for vindictive damages, which are allowed where a wanton tort has been committed. Here was a doubtful question of property, and the costs given by statute are a sufficient com pensation to the prevailing party.
    
      Hubbard and H. H. Fuller, for the plaintiff
    
      
       1 W. Black. 104.—3 D.& E. 119.—Ibid. 783, Kinloch & Al. vs. Craig.
      
    
    
      
       2 H. Black. 235, Waugh vs. Carver.—Montague on Partnership, 5, 8, 42 —II Ves.jr., 404.—2 If. Black. 999.-4 East, 144.—1 Ves. 2i2.—Cowp. 471.
    
    
      
       2 Caines, 243.
    
   Putnam, J.,

delivered the opinion of the Court.

If the deposition of Lindsay should have been rejected, there ought to be a new trial. Two objections have been made to it. The first is that he was interested ; and, secondly, that it contradicts a written contract.

In regard to the first objection, it appears that the witness is indebted to the plaintiff, and also to the attaching creditor. If the plaintiff should prevail, the property attached will be applied towards his demand. If the defendant should prevail, it will go to reduce the demand of the attaching creditor. In contemplation of the law, it is indifferent to the debtor, which of his creditors shall have the property; he will still remain indebted to the losing party. He may have manifested some preference of one to the other; but this goes to his credit, and not to his competency.

The second objection, seems not to be supported in point of fact. For it appears that the deposition was not introduced to contradict or materially to vary the contract, but to prove that the plaintiff had advanced his money upon the agreement that he should have the consignment of the timber for his security. We are of opinion that the deposition was rightly admitted.

The general question is then to be considered, whether the plaintiff, or the attaching creditor of Lindsay, shall hold the property. On the part of the defendant it is objected, that the plaintiff had no possession of the property, and, therefore, had no [ * 204 ] lien ; inasmuch as Lindsay * had contracted to sell the timber to the United States, and the master of the vessel appointed by Lindsay was proceeding to deliver it accordingly; and it is further proved that the plaintiff did not go on board of the vessel after her arrival, and before the attachment.

But it appears that Lindsay consigned the timber to the plaintiff; that it was shipped on his account; and that he had authority to receive the price from the United States; and, further, that the plaintiff had in his possession a bill of lading of the timber; and that he endorsed his orders upon it before the attachment, directing the master to proceed to the navy-yard at Charlestown, to deliver the property. And the master was acting in obedience to those instructions, when the defendant interposed by his attachment.

The case of Kinloch & Al., Assignees of Sandiman & Graham, Bankrupts, vs. Craig, Sequestrator of John Steine, cited for the defendant from 3 D. & E., 783, greatly differs from the case at bar. In that case Steine shipped the goods to Sandiman fy Graham, and his sequestrator was, under the circumstances, entitled to recover. But it was found that the consignees became bankrupts before the ship arrived, and on that account refused to receive the goods. They never had the possession of them. The bill of lading expressed that they were to be delivered to Steine or his assigns. In the case at bar, the shipment was made upon the account of the plaintiff. The timber was to be delivered to him. He had an authority, coupled with an interest, in the disposal and proceeds of it. Upon the arrival of the vessel, the plaintiff assented to the transaction, and gave his directions accordingly.

It is not necessary, to effect a transfer of bulky articles, that there shall be a manual delivery of them. The delivery of things, which may be considered as the proper indicia of the property, is sufficient. And in the case at bar, the fact of possession may be inferred from the plaintiff’s undertaking to deal with the property as his own, by the * endorsement upon the bill of lading. [ * 205 ] The case, in this part, is as strong as that of Chaplin vs. Rogers, 1 East, 192, which was assumpsit for a stack of hay. The plaintiff was put to the proof of the delivery of it, which he maintained by showing that the defendant had sold a part of the hay to one who had taken it away. This was held sufficient to prove that the defendant had the possession; inasmuch as he had made a valid sale of the hay, and dealt with the property as his own. We are satisfied that the plaintiff, in the case at bar, had such a possession as will enable him to try his right.

It has been further insisted that if the possession was in the plaintiff, he had it as a partner of Lindsay; and that a creditor of one partner may attach his right in the property of the company, and take possession of the whole; and the case of Waugh vs. Carver & Al. has been much relied on to support that position. It is there stated by Eyre, C. J., that “ he who takes a moiety of all the profits indefinitely, shall by operation of law be made liable for losses, if losses arise; upon the principle that, by taking a part of the profits, he takes from the creditors a part of that fund, which is the proper security for the payment of their debts.” This remane, as a general observation, is true. It may be that, as between the parties, no partnership exists; and yet that they may have conducted themselves in such manner, as to have induced others to believe that such a partnership existed, and to give credit accordingly. In such a case, they are not to be protected by their private agreement that one shall not be held answerable for the other.

But the case at bar differs from the case cited. The attaching creditor never had any claims against the supposed firm. He was never imposed upon by any delusive appearances of a copartnership. He trusted Lindsay only.

It cannot, however, be true, that all who participate in the profits, are to be considered as partners, in respect to * the concern or adventure, from which the profits arise. [ * 206 ] Seamen, for example, who are employed in the whale-fishery, are usually compensated for their services by a certain part of the profits of the voyage. Nevertheless it has not been supposed that this circumstance made the mariner a partner with the shipowner, so as to render it lawful for a creditor of the mariner to take the whole cargo of oil for his private debt. So, in the case of shipments to India upon half profits, so generally practised in this country, it would hardly be contended that the numerous freighters, often unknown to each other, have by such shipments become answerable for each other, or in any way interested as partners with the ship-owner, in respect to the dollars, which constitute the adventures, and which he undertook to carry to India for half the profits. If such were the result, there would soon be an end of that very extensive class of commercial enterprises.

The resemblance between the cases now mentioned and the case at bar, is very strong. The plaintiff advanced his funds, to be invested by Lindsay in live oak in Florida, to be procured, cut, and transported, at the expense of Lindsay, but on the account and risk of the plaintiff, to the navy-yards of the United States; and for the services and disbursements of Lindsay, he was to have half the profits, as the owners of the freighting ships to India are compensated for their services and disbursements; and the plaintiff, for his risks and advances, was to have his principal sum repaid, and the residue of the profits. But it never has been thought that the return cargo was liable for the debts of the ship-owner .

If, however, the case be put on the defendant’s hypothesis, and it be supposed that the plaintiff and Lindsay were partners, it does not follow necessarily, that a creditor of Lindsay might lawfully take the partnership property. That must depend upon the solvency of the company, and upon the question whether any surplus remained for the separate partner, after the payment of his [ * 207 ] debts to the * company, and the debts of the company to the world. The creditors of the firm are to be preferred to the creditors of the several partners. Now it appears, in the case at bar, that the plaintiff is a large creditor to the supposed firm; and that there is not partnership stock sufficient to pay the debts of the firm. There is no surplus for the debtor partner; and for that reason, the attachment must fail.

As to the direction of the judge respecting the damages, it was suggested that the Court were not agreed upon the subject; whereupon the plaintiff released the 75 dollars, found by the jury, as a compensation to him for the expenses incurred by him in the prosecution of the suit, and then took judgment on the verdict. 
      
       [There is clearly a partnership quoad hoc in all these cases, unless there he an agreement that the party shall, for his services, have a sum equal to half of the profits, and shall not be entitled to an account of the profits, or to any part of them ai euch.—Ed ]
     