We think the evidence is quite conclusive that the cargo shipped to the defendant’s intestate was delivered, not only without any assertion of a lien for the freight, or reliance upon it, but under circumstances which indicate an intention to waive the lien. This has been expressly decided in the supreme court of the United States, in a suit in admiralty, in which the present plaintiffs and defendant were parties, and by the judgment in which they are bound, affirming a like decision in the district and circuit courts. Bags of Linseed, 1 Black, 108. Assuming it to be doubtful whether that judgment is technically a bar to the present suit, it is at least decisive upon the point that the plaintiffs had no maritime lien upon the cargo for freight at the time that libel was filed. And unless upon the ground of fraud, accident or mistake, we do not readily perceive any ground for giving relief in equity upon a lien that has been lost by waiver; that is, establishing an implied trust, where a direct right of property has been voluntarily relinquished.
But we need not consider the extent of the binding force of that judgment, because, to whatever extent it is open to revision, we are satisfied with its correctness. The property was delivered unconditionally, without any suggestion that it was intended to rely upon the lien. Much the larger part of it was transshipped on board another vessel, bound to a foreign market. Mr. Augustine Wills was then in good credit, and his estate at his decease was thought to be ample to meet his obligations. When payment of freight was first demanded, and refused on the ground that administration was not taken out, no suggestion of a resort to the lien was made, until the idea of a possible insolvency was entertained.
If the plaintiffs were relying upon a lien for the freight under *216the bill of lading, there would seem no possible doubt that it had been waived and abandoned. But their counsel have argued that the charter party contained an express agreement for a continuance of the lien, notwithstanding the delivery of the goods, and that they have a right to insist on the provision of the charter party against the defendant; and authorities have been cited in support of this position.
These authorities go to the extent that the owner of a ship has a right to retain goods shipped by third persons under bills of lading from the charterer, until the freight is paid, if the shippers had notice of the charter party, although by the bills of lading the freight would not be payable, or would be payable so as to release the lien. But they do not authorize the conclusion that specific agreements in the charter party, providing for something more than the general lien for freight given by the mercantile law, can be enforced against third persons either in law or in equity. The defendant was not a party to the charter. The right of the plaintiffs against him was either as assignees of the bill of lading, or it was merely the paramount right of a ship owner to retain the goods until the freight was paid, against a shipper not a party to the charter. It would seem that if the plaintiffs sought to exercise the latter, they should have retained the cargo until the freight was paid; or if they meant to preserve their lien as a matter of special contract, should have given the defendant distinct notice that it was understood the contract of the charter party would be enforced against him. On the contrary, the plaintiffs took an assignment of the bills of lading, and undertook to collect them. They had taken security for the payment of the freight secured by the charter party, above the amount specified in the bills of lading. They deli ered the whole cargo unconditionally, and without any mention or suggestion of a purpose to rely upon a lien. The intention to assert the lien seems to us to have been an after thought, first conceived when doubts were excited of the solvency of the estate of Augustine Wills. It had before this been waived, according to the understanding of both parties, and could not be revived
*217The position that the plaintiffs should have relief in equity, because they have lost their lien under a mistake of fact, cannot be supported. It does not appear from the facts agreed that the estate of the defendant’s intestate was insolvent at the time the cargo was delivered. It proved to be so subsequently; but this might be, and probably was, owing to the rapid depreciation of the property in which it was invested. But where there was no fraud, that a purchaser has less ability than he or the vendor supposed, to pay for property which he had bought, would be a novel ground in equity for rescinding the bargain.
Judgment for the defendant.