Izette Shaw and another, executors of Abram Shaw, vs. N. Gookin, 7 N.H. 16

Richabdson, C. J. delivered the opinion of the court. The order drawn by the defendant in favor of T. Shaw upon the testator and by him accepted, must, under the circumstances, be considered as a payment of the note the defendant holds, pro tanto. The estate of the testator is liable to T. Shaw. If the defendant now had the order the case might be different. 3 Starkie’s Ev. 1089; 4 Esp. N. P. C. 159, Dangerfield vs. Wilby; 5 D. & E. 517, Richardson vs. Rickman.

But can the defendant avail himself of that note as a set-off against the claim of the plaintiffs in this case, or has he aright to retain the money sought tobe recovered in this case in satisfaction of that note ? When an executor sues for a debt which has accrued to him since the death of the testator, it is settled that the defendant cannot set-off a debt due to him from the testator, for this would alter the course of distribution. Willes 103, Shipman vs. Thompson; 4 John. C. R. 13; Willes 264, note (a.;) Buller's N. P. 180; 1 Bingham 93, Rogerson vs. Ladbroke; 2 N. H. R. 419 and 479.

In this case, when the defendant received the freight after the death of the testator, a debt accrued to the plaintiffs as executors ; and it is clear that the note cannot be received as a set-off to such a debt. The defendant cannot then avail himself of the note as a defence in this case, unless it was a lien upon the freight he received. The direction of William Shaw to the defendant to pursue the voyage, and pay himself out of the first earnings of the vessel, does not alter the law of the case ; because it does not appear that W. Shaw then knew that the estate was insolvent.

In England, the captain of a ship has no lien upon. the ship for wages — Douglas 101, Wilkins vs. Carmichael; not for money expended or debts incurred by him for repairs on the voyage — 9 East 426, Hussey vs. Christie; nor has he any lien on the freight for his wages or for his disbursements on account of the ship during the voyage. 1 B & A. 575, Smith vs. Plummer. But in the case of White vs. Baring, 4 Espin. N. P. C. 22, Lord Kenyon held that the captain of a ship had a lien on the goods and freight for engagements entered into on account of the ship.

And it seems now to be settled in this country, that the master of a ship has a lien on the cargo and freight co-extensive with the advances made, and the liabilities incurred by him for the use of the ship during the voyage. 7 Cowen 670, Ingersol vs. Van Bokkelin, 3 Mason 264; 11 Mass. R. 72, Abbot vs. Shipping 150. A lien to this extent is perfectly reasonable ; but a lien in favor of a master of a vessel upon the freight for all that may be due to him from the owner, on any account, can hardly be sustained upon principle.

In this case, why shall this defendant be placed on any different ground in relation to this note, from any other creditor ? We see no reason. This note had no connexion with the voyage in which the freight was earned. Accident placed the money in his hands, and he can have no better claim to retain it than any other creditor would have had, if it had by accident come into his hands. Nor is there any case that gives any countenance to such a lien. The case of Hodgdon vs. Butts, 3 Crunch 140, has been misunderstood.

It is not said in that case that a master of a ship may, as a general creditor, have a lien on the freight. No question of lien arose, was discussed, or decided in that case.

The chief justice said, “ the freight “ had previously been applied by Butts, under the authority “ of the Hamiltons, to the payment of a debt due to himself. “ He had a right, as, a general creditor, to retain that freight “ as against the original owners or their assigns.” The amount of this is, that Butts, having applied the freight, under the authority of the owners, to pay his own debt, had a right to retain it against them and their assigns, and it amounts to nothing more.