The first question necessary to be settled in this case is, whether the plaintiffs have shown any legal title to any j art of the proceeds of the oil belonging to the six seamen, so as to be able to maintain the action for the whole or such balance as may be found justly due to them.
The whole amount of the shares of the seamen was assigned for a valuable consideration, according to the custom of that trade, to Folger, which assignment was notified to the person acting as agent for the owners and assented to by him, and after-wards sufficiently ratified by the owners ; so that if the oil or proceeds had remained in the hands of the owners or.their agent, an action would undoubtedly have lain against him or them by Folger in his own name, according to the case of Mowry v. Todd, 12 Mass. R. 281, there being an express promise to deliver the proceeds to him ; for the jury have found that the plaintiff acted under the authority of the owners in the settlement they made with Folger. An action having been brought by Folger against the plaintiffs and judgment rendered against them, and the amount paid over as testified, the plaintiffs would undoubtedly have a right to retain, in a settlement with the owners, if the property or proceeds remained in their hands, or to have an action against the owners, if it had been paid over to them, it being in such case so much money paid to the use of the owners and at their request, as the law would imply.1 And it seems to me, that under the ciicumstances proved they would be entitled to an action for the specific oil which belonged to the seamen and was assigned to Folger, because Folger had virtually assigned it to them, by taking their accountable receipt for the proceeds, or at least they became thereby bis bailees, so as to have a qualified property therein which would entitle them to an action ; and if so, assumpsit would lie for the proceeds against any one, who having no right had sold the oil and received the proceeds in money.1 So that *122if the defendant, captain of the vessel, has no legal right to re ta'n) I do not see but that the action may be well maintained against him. This makes it necessary to consider the rights of the defendant as they arise out of the facts proved in the case.
And there seems to be no reason to doubt that he had, il not a lien on the oil in a technical form, a right to retain from the proceeds so much as would reimburse him the advances made to the seamen, according to the usage of that trade as proved to exist. He certainly would have a right, upon common principles, without any usage, to retain against the seamen themselves, if they had not assigned. If they had shipped on wages, as is usual in other voyages, he might retain out of their wages advances made in money or clothing necessary for their comfort, and there is no reason why these shares of the oil, which they were to receive in lieu of wages, should not be subject to the same deduction.
Besides, the general usage of these voyages, which of themselves are peculiar and almost confined to Nantucket and New Bedford, is very clearly proved, there being no contradictory evidence, and by that usage the captain makes the advances and retains out of the shares of the men, as well when they are assigned, as when they remain their property ; and of this usage Folger, under whom the plaintiffs claim, must be presumed conusant, bis claim resting perhaps principally on another usage of the same trade. Nor is it an unwarrantable custom, as suggested by the counsel for the plaintiffs ; for nothing can be more reasonable, and indeed necessary, than that in voyages of this sort, which are prosecuted from pole to pole and through almost every climate, the wants of the seamen should be supplied, and if there were no security upon their earnings, there would be nooody to advance.
But it is said that the lien, if it ever existed, has been lost, first, by surrendering the whole of the oil to the agent of the owners, and secondly, by afterwards, when the defendant had taken possession by order of the owners, delivering it over again to the agent for sale. But the nature and circumstances of the property and the voyage should be considered. The men by their original contract had no right to have their proportion of oil and take it to themselves, but the whole was to *123oe sold and they were to have their share of the proceeds. It is true, that by consent of the owners, their proportion was set apart and all came into the hands of the defendant. Now his parting with it for the purpose of having it sold and converted into money, was by no means giving up his lien, for while it was in the possession of the agent his lien continued, and having received the proceeds he is accountable only for the balance, after deducting the amount of his advances. But he has no right to retain the whole, nor is he accountable to any but the plaintiffs for the balance ; not to the seamen, for they assigned their property to Folger ; not to Folger, for he has received the money and transferred by operation of law his interest to the plaintiffs ; not to the owners of the vessel, for they have already received what, by their own consent, is to be taken for their shares.
I see therefore no good reason why the plaintiffs should not recover the balance, which the defendant might have discharged himself of and saved the costs of this suit. We think the defendant has a right to retain the advances made by him to the six seamen, the proceeds of whose oil have come into his hands, not however in solidum, but each seaman to be responsible for his own debt, and if that can be adjusted so as to ascertain the balance, the verdict will be amended accordingly.1
See 1 Chitty on Pl. (6th Amer. ed.) 383; Hassinger v. Solnes, 5 Serg. & Rawle, 4; Packard v. Lienow, 12 Mass. R. 11; Ott v. Chapline, 3 Harr. & M Hen. 323; Smith v. Sayward, 5 Greenl. 504.
See 1 Chitty on Pl. (6th Amer. ed.) 385, et seq.
See Baxter v. Rodman, post, 435.