
    John H. Ladd versus Bradish Billings.
    One who has given bonds, as principal, to the United States for the duties accruing on the importation of merchandise, has no lien on the merchandise in consequence of his giving such bonds.
    This was a writ of replevin of certain articles of merchandise, of which the plaintiff claimed the possession, and which had been attached by the defendant, a deputy sheriff of this county, as the property of one William, Ladd, who, when said attachment was made, had been several weeks absent on a journey.
    The cause was tried before the Chief Justice. The plaintiff, in support of his demand, produced the invoice and bill, of lading of the said merchandise ; which were in common form, and stated the same to have been shipped on the joint account and risk of the plaintiff and the said William, and tobe delivered to them in Boston, it being their joint property.
    Previously to the arrival of the merchandise, the plaintiff had agreed to consign it to Messrs. Marston 8/- Thayer, who advanced a small sum on account of the same ; and on arrival it was so consigned to them, and when replevied, was delivered to them, by them sold and accounted for to the plaintiff.
    The plaintiff also proved that he entered the said merchandise at the custom-house, and secured the duties thereon to the United States, previously to the defendant’s attachment, by two bonds, executed by himself as principal, and three others as sureties, dated the 14th of October, 1816 ; which said bonds were paid by the plaintiff when they became due.
    The attachment was made by the defendant .on the 14th of October, and the writ of replevin was sued on the next *day. The plaintiff was summoned as trustee of the said William, in the same process on which the merchandise was attached by the defendant.
    A verdict was taken for the plaintiff, subject to the opinion of the Court, whether, upon these facts, the plaintiff had, at the time of the service of the writ, any such general or special property in the said merchandise, as entitled him to the possession thereof. And if the opinion of the Court should be in favor of the plaintiff, judgment was to be rendered on the verdict; otherwise, it was to be set aside, and judgment upon nonsuit rendered for a return of the merchandise and costs.
    
      Savage, for the plaintiff,
    argued that he was entitled to possession of the goods replevied, on account of the lien acquired by him in consequence of his having given the bonds for the duties to the United States, who had such lien thereon prior to the duties being secured. By this means the plaintiff gained a special property in the merchandise, in addition to the general property which he before had in common with W. Ladd. In right of the general property, each copartner had authority to possess and dispose of the goods; but when the plaintiff had secured the duties, he was entitled to possession, as against his copartner. There was then nothing in the merchandise subject to attachment as W. Ladd’s. A purchaser from him of his moiety could not have taken it from the possession of the plaintiff, nor could a creditor have any other or better right than his debtor. 
    
    
      Davis, (Solicitor-General,) for the defendant.
    Upon the arrival of the merchandise, W. Ladd was owner of a moiety, which was subject to the attachment by his creditors unless the plaintiff had, prior to the attachment in this case, transferred the whole property, or had acquired a right to-possession of the whole, to the exclusion of his copartner, by having secured the duties to the United States. As to the consignment to Marston & Thayer, it was not such a one as could protect it from attachment. It was not a * transfer, but merely a promise to consign. And this was beyond the plaintiff’s authority, as a joint owner of this merchandise, although, had there been a general partnership, it might have been otherwise. If that transaction amounted to a legal transfer, then the plaintiff cannot maintain his action. The right of possession is in the consignees.
    The United States had a lien on the merchandise, until the bonds were given; but it ceased when they had security for the duties. As to the priority given by the laws, it relates wholly to sureties, and it applies to the estate of the principal generally, but creates no lien upon the specific articles upon which the duties secured have arisen.
    
      
      
        Watson's Partnership, 139. — Cowp. 445, Fox vs. Hanbury.
      
    
   Parker, C. J.,

delivered the opinion of the Court. The plaintiff cannot maintain this action, unless he prove general or special property of the chattels replevied, solely in himself. For, as tenant in common with William Ladd, he cannot bring replevin; the offi cer having a- right to the whole of the goods under his attachment, to keep the same until execution come. The plaintiff claims only a special property ; and this he would derive from the fact of his having entered the goods, and secured the duties upon them, in the custom-house ; he being principal in the bonds, and having paid the duties as they became due.

But we are of opinion that he did not acquire a lien by these acts, by any principle of the common law, or by virtue of any statute of the United States. The only provision of those statutes is, in favor of sureties, that, if they discharge the bonds for the principal, the right of priority, before enjoyed by the government, is transferred to the sureties.

It is true that, if the duties on goods imported are not secured within a time prescribed, they may be taken into custody by the revenue officers; but we think this potential lien cannot be changed into a lien in fact, in favor of the person who undertakes to secure

the duties, by giving bonds as principal, Had the consignment taken effect, the * consignees would have had the lien, and not the plaintiff. There seems to be no

principle upon which the action can be maintained. The verdict must therefore, be set aside, and judgment be entered, upon the nonsuit of the plaintiff, for a return of the chattels replevied, with costs.

Plaintiff nonsuit. 
      
       2 Mass. Rep. 509, Hart vs. Fitzgerald. — 9 Mass. Rep. 427, Gardner vs. Dutch. — 13 Mass. Rep. 199, Page vs. Weeks.
      
     
      
      
        Stat. of U. S. 5 Cong. 3 Sess. c. 128, § 65.
     
      
      
         Badlam vs. Tucker, 1 Pick. 400. — Bridge & Al. vs. Strange, 17 Mass. Rep. 405 —Melville vs. Browne, post, 82.
     
      
      
         There can be no valid attachment of goods held by the collector before the d «ties are secured. — Harris vs. Dennie, 3 Peters, S. C. c. 292. — Dennie vs. Harris 9 Pick. 354.-5 Pick. 128.
     