Page:Federal Reporter, 1st Series, Volume 2.djvu/832

 TOPFER V. SCHOONER MARY ZEPHTB. 825 �maritime liens entitled to priority. See The Mary Anne, Ware, 104. If, therefore, the petitioner can show that he had a lien on the vesael for the amount of his advances at the time of her seizure, he will be entitled as against the owner to payment ont of the proceeds. It is unnecessary in this case to discuss the vexed question whether a part owner of a ship has a specifie lien on the share of his co-owner for his portion of the expenses of fitting ont and running her. Lord Hardwicke was of opinion that he has, and he decreed in favor Ôf the part owners against the share of a co-owner -who had died without contributing his share of the expenses. With respect to this ruling Judge Story ■ observes : "After ail, there would seem to be intrinsic equity in the doctrine maintained by Lord Hardwicke, and, as liens may arise either from express or implied agreements, it is but a reasonable presumption (in the absence of ail controUing ch'cumstanceB) that part owners do not intend to rely solely upon the per- aonal responsibility of each other to reimburse themselves for expenses and charges inourred upon the common property for the common benefit, but that there is a mutual under- standing that they shall possess a lien in rem." Story on tart. § 444. �In England the law appears to be settled adversely to the existence of the lien, (Ex parte Harrison, 2 Eose, 76; Ex parte Young, Id. 7S, note ;) but in America much diversity of opinion has prevailed. Mr. I. Curtis thinks that the decisions may in some degree be reconciled by attending to the dis- tinction between cases where the owners occupy towards ëach ©iher the relation of mere tenants in common of a chattel, and those where they are partners in a common adventure. In the latter case the lien unquestionably exists, but if there be not the relation, the learned judge was of opinion that there was no lien. The Larch, 2 Curtis, 434. If, as held by Mr. I. Curtis, the lien be confined to cases of aotual partner- ship between the part owners, there would be much ground to contend that, under the circumstances of the present case, the parties bore that relation to each other, or, at least, sucl^ ����