But the Court of Errors reversed this part of the Chancellor’s decree holding that though the part owners are, gene*422rally speaking, tenants in common, not partners or joint tenants; yet there may be a special partnership between them in the ship, as well as in the cargo, in regard to a particular voyage and adventure, and the proceeds arising from the sale of the ship and cargo and the profits of the adventure ; and where one of two part owners of a ship and cargo receives or gets into his possession the whole proceeds, he has a right to retain them until he is paid or indemnified for what he has paid or advanced more than his share ; but not for any general balance of account arising from former and distinct voyages or adventures in which they have been concerned together, in the same or other ships or vessels, there being no general partnership between them, and each adventure creating a special partnership by itself, which terminated with the particular adventure.
Chancellor Kent, in this case, followed the decision of Lord Eldon, in Ex parte Young, 2 Ves. & Beames, 242. Lord Eldon held, that a part owner of a vessel had no lien on the share of his co-owner for a balance which may be due him.
In 1 Gilpin, 46b, Hopkinson, District Judge, says, “ I should be disposed to follow the opinion of Lord Eldon in the case of Ex parte Young, 2 Ves. & Beames, 242, as Chancellor Kent did, on this question in the case of Mumford v. Nicoll; although a majority of the judges in the Court of Errors, seemed inclined to support the opinion of Lord Hardwicke in the case of Doddington v. Hallett, 1 Yes. Sen. 497, which was in favor of the lien.”
Per Hopkinson, J.in Patton v. The Randolph, 1 Gilpin, 460.
In Doddington v. Hallett, Lord Hardwicke held that part owners of a ship, being tenants in common and not joint tenants have a right notwithstanding to consider that as a chattel used in partnership and liable as partnership effects to pay all debts whatever to which any of them are liable on account of the ship.”
Though Ex parte Young and Daniel v. Russell, 14 Ves. 393, seem to decide the contrary, and a case in Massachu*423setts Supreme Court, Merrill v. Bartlett, 6 Pick. 47, might on mere authority balance that of Lord Hardwicke, yet the case of Mumford v. Nicoll, as decided by our Court of Errors seems to have settled the law on this point, in our own state, as to the lien of a part owner for the balance due him for his advances beyond his own proportion or account of the ship, where the lien is claimed on a particular voyage as in that case; and the expression of Hopkinson, J. that a majority of the judges of the Court of Appeals (Errors) seemed inclined to support the opinion of Lord Hardwicke, in the case of Doddingion v. Hallett, refers only to that part of Lord Hardwicke’s decision which gave a lien for a general balance on the voyages and transactions of the shipowners, in favor of the creditor owner. But as to the lien on the particular voyage in that case, the Court of Errors distinctly overruled and reversed the decree of the Chancellor and sustained the lien.
From the opinion of Spencer, Ch. J. upon those two points the following extracts will prove that he was inclined to adopt the rule of Lord Hardwicke in Haddington v. Hallett, to its fullest extent, as to the lien of a part owner for advances where there was, as in that case, a limited special partnership existing in the fitting out, on a circuitous trading voyage at the joint expense of the parties. He says, “ Lord Hardwicke perfectly understood the distinction between a tenancy in common, such as owners of different shares in a ship have among themselves, and a joint tenancy, as between partners, of the goods and stock in trade. He meant to decide and did. decide that a subject which ordinarily may be held as a tenancy in common may by the acts of the parties, become to be held in joint tenancy. And the facts of the agreement to build the ship at their joint expense, in proportion to their shares, and the agreement to fit her out and victual her for the service of the East India Company, formed in his judgment such a community of interest, as to constitute that a partnership transaction, in relation to those subjects, and thus a specific lien was acquired by those who contributed more than their shares, against the shares of the one who contributed less than his proportion.
“ The cases cited by the Chancellor, and on which he has *424relied to establish a contrary doctrine do undoubtedly strongly impugn the authority of Doddington v. Hallett, though I must be allowed to say, that the case, Ex parte Parry, 5 Ves. Jr. 575, is very distinguishable and does not oppose Lord Hard wicIre’s opinion.”
“ It is, however, to be observed that all the cases on which the decree (in the case before the court) is founded are long since our revolution, and have no authoritative influence here; and I am not disposed to overrule Lord Hardwicke, supported, as I think he is, by Lord Mansfield and the other judges who sat with him, in a case in which justice and right require him to be supported. The statement of this case shows, that it is much stronger for the appellant than the case before Lord Hardwicke. The vessel here was owned in equal shares and was fitted out, or to be fitted out on a circuitous trading voyage at the joint expense of the parties. It was,.therefore, a limited and special partnership, not only as to the cargo, freight, and the profits thereon, but as to the fitting out of the vessel. The respondents are assignees for prior debts andaré chargeable with notice, or at all events, have received the subject, liable to all equities between the appellant and Stillwell. Can it be just and equitable to deprive the appellant of his right to re-imburse himself for the moneys he has been compelled to pay, as part owner for the default of Stillwell, in whose shoes the respondents stand 1 I answer unhesitatingly, that it would be inequitable and unjust to do so.”
■ November 13th, 1822. A majority of the senators (24 to 4,) concurred in the opinion of Ch. J. Spencer, that the decree ought to be reversed in part and thus modified: it was accordingly decreed, that the decree of the Court of Chancery be reversed ; and that an account should be taken between the respondents as assignees of Stillwell, and the appellant, in respect to the brig Phoenix and her cargo and voyages, &c., on the footing of a special partnership in such brig, cargo, and voyage, and the proceeds thereof: and that on such accounting, the appellant should be allowed all moneys paid by him more than his proportion for repairs to the Phoenix, in *425fitting her out for the voyage, and also for what he had paid more than his proportion of her outfit in ship chandlery or otherwise, excluding from such accounts any former or other voyage in any other vessel or vessels.”
Question of costs reserved.