The opinion of the Court was drawn up by

The question arising on this report seems to be, whether Sargent, to whom the sheriff paid the proceeds of the sale of the ship, so far as the same were supposed to belong to Edwards, is entitled to hold the same in preference to the plaintiff, who had attached Edwards’s interest in the vessel for a debt due to him. We cannot perceive how a lien has been acquired by Sargent. He and Edwards were not copartners, and the vessel was not joint stock. According to the original agreement, they were to be tenants in common of the ship, in the proportion of three fourths to Sargent, and one fourth to Edwards. For all which Sargent advanced towards the share of Edwards, he was his creditor, and he had only the same right as other creditors to attach his interest in the ship and other property belonging to him; and this was his course in the first instance, founded upon a true construction of their relation. One tenant in common of a chattel cannot acquire title to the whole chattel, merely by becoming creditor of his fellow. He may attach like other creditors. That Sargent voluntarily became joint debtor with Edwards for some of the materials used in the ship, does not give him a lien, any more than if each had paid his proportion in the first instance, Edwards having borrowed of Sargent the amount wanted for his share.

In the cases of Young, ex parte, 2 Ves. & Beames, 242, and Daniel v. Russell, 14 Ves. 393, it was decided, that owners of a ship have no hen upon the part belonging to one of the owners who has become bankrupt, for his share of the outfits advanced by them. In earlier times Lord Hardwicke entertained a different opinion, as in Doddington v. Hallett, 1 Ves. Sen. 497. But the late Lord Chancellor Eldon expressly overruled that doctrine, which had indeed been questioned before ; and in Abbott on Shipping 1 the latter doctrine is adopted as law. Indeed no authority has been *48shown for the right claimed by Sargent. He and Edwards originally became, by their contract with the ship-builder, tenants in common in the proportions before stated. They originally intended to supply materials, and pay the shipbuilder, in the same proportions. Edwards actually advanced from his own funds a part of his proportion, and the money he borrowed on the credit of Sargent was intended to be applied to the same object. His failure to pay his proportion did not divest him of his title in the ship. Most clearly he had an interest in her, at least to the extent of what he had advanced, and this was an interest liable to be attached for his debts, and Sargent was but a creditor. The plaintiff in this suit, having made the first attachment, has a right to the proceeds of the sale of the vessel on execution, and the sheriff having neglected to satisfy his execution, his action is well maintained. The defendant therefore must be defaulted and judgment rendered for the amount of the plaintiff’s execution, with costs.

In the case of Thorndike v. De Wolf & Trs. (post, 124,) Suffolk, March term 1828, the question of lien of part owners is more fully gone into, and other authorities cited.