2 ; 9 Mod. 11.
So, too, there is a lien where property is conveyed inter vivos, or is bequeathed or de vised by last will and testament, subject to a charge for the payment of debts, or to other charges in favor of third persons. Story, Eci. Jur. 1244. A distinction must be kept in mind between a devise in trust to pay certain sums, and a devise subject to charges.
A covenant to convey and settle lands does not give the covenantee a lien; but was held to do so in case of a covenant to settle lands in Iieu of dower. 3 Brown, Ch. 489 ; 1 Ves. Ch. 451 ; 1 Maddox, Chanc. Pract. 471.
20. Waiver. The lien may be waived bv agreement; but postponement of the day a payment is not a waiver, not being inconsist ent with tlie nature of the lien ; nor taking personal security. Adams, Eq. Jur. 128 ; 1 Johns. Ch. N. Y. 308 ; 2 Rand. Va. 428 ; 2 Humphr. Tenn. 248 ; 1 Mas. C. C. 192 ; 2 Ohio, 383 ; 1 Blackf. Ind. 246 ; 1 Paige, Ch. N. Y. 502; 6 B. Monr. Ky. 174; 6 Yerg. Tenn. 50 ; 3 Ga. 333,; Story, Eq. Jur. 1226; 1 Ball & B. Ch. Ir. 514 ; 15 Ves. Ch. 348. A bill or note payable at a future day is gene rally held merely a means of payment, and not a security destroying the lien. 1 Sehoales & L. Ch. 135 ; 2 Ves. & B. Ch. Ir. 306; 1 Madd. Ch. 349; 2 Rose, 79 ; 2 Ball & B. Ch. Ir. 514. But if it be the note of a third party, or an independent security on real estate, it would generally be a waiver. Story, Eq. Jur. 1226, n.; 4 Kent, Comm. 151 ; 4 Wheat. 290; 1 Paige, Ch: N. Y. 20; 9 Cow. N.Y. 316; 1 Mas. C. C. 212. And, generally, the question of relinquishment will turn upon the facti of each case. 6 Ves. Ch. 752 ; 15 id. 329; 3 Russ. Ch. 488; 3 Sugden, Vend. c. 18; 8 J. J. Marsh. Ky. 553.
21. Maritime Liens. Maritime liens do not include or require possession. The word lien is used in maritime Iaw, not in the strict legal sense in which we understand it in courts of common law, in which case there could be no lien where there was no posses sion, actual or constructive ; but to express, as if by analogy, the nature of Claims which neither presuppose nor originate in posses sion. 22 Eng. L. & Eq. 62. See 15 Bost. Law Rep. 555 ; 16 id. 1, 264 ; 17 id. 93, 421. A distinction is made in the United States between qualified maritime liens, which de pend upon possession, and absolute maritime liens, which do not require nor depend. upon possession. 7 How. 729.
22. The shipper of goods has a lien upon the ship, for the value of the goods sent, which can be enforced - in admiralty, 1 BIatchf. & H. Adm. 300 ; OIcett, Adm. 43 ;
1 Blatchf. C. C. 173: Ware, Dist. Ct. 188 ; 1 Sumn. C. C. 551 ; 12 How. 27 ; and, gene rally, every act of the master binds the .ves sel, if it be done within the scope of his authority. 17 111e. 147; 1 W. Rob. Adm. 392 ; 2 Eng. L. & Eq. 536 ; 18 How. 182; 19 id. 22, where the posse,ssion of the mas ter is not tortious but under a color of right. 6 McLean, C. C. '484. This does not apply to contracts of. material Men With the master of a domestic ship, 1 Conkling, Adm..; and the act must have been within the scope of the master's employment. 18 How. 182. See Crabb, 23 ; 1 C. Rob. Adm. 391-406. This lien follows the ship even in the hands of a purchaser., without notice before the creditor has had a reasonable opportunity to enforce his lien. Ware, Dist. Ct.188. If the master borrow money for the ship's necessity, the lender has a Iien on the ship for the amount.
3 Yeates, Penn. 131; 4 Dail. Penn. 225 ; 8 Me. 298.
23. The owner of a ship has a lien on tha cargo carried for the freight earned, whether reserved by a bill of lading or not. 12 Mod. 447; 6 East, 622 ; 4 Campb. 298 ; 7 Taunt.
14 ; 4 Barnew. & Ald. 630 ; 2 Brod. & B. 410 ; 4 Mass. 91 ; 6 Pick. Mass. 248 ; 18 Johns. N. Y. 157 ; 5 Wend. N. Y. 315 ; 5 Sandf. N. Y. 97; 5 Ohio, 88 ; 4 Wash. C. C. 110 ; 8 Wheat. 605 ; Ware, Dist. Ct. 149 ; 1 Sumn. C. C. 551 ; 2 id. 589 ; 2 Woodb. & M. C. C. 151.
This lien is, at most, only a qualified mari titne lien. See 1 Parsons, Mar. Law, 143, n. The lien exists in case of a chartered ship, 4 Cow. N. Y. 470 ; 1 Paine, C. C. 358; 4 Barnew. & Ald. 630 ; 20 Bost. Law Rep. 669; 8 Wheat. 605, to the extent of the freight due under the bill of lading. 2 Atk. Ch. 621; 1 Barnew. & Ald. 712 ; 4 id. 630 ; 1 Sumn. C. C. 551. But if the charterer takes possession and management of the ship, he has the lien. 1 Cowp. 143 • 8 Cranch, 39 ; 6 Pick. Mass. 248 ; 4 Cow. Isf. Y. 470 Ware, Dist. Ct. l49 ; 4 Mann. & G. 502; 26 'Eng. L. & Eq. 136. No lien for freight attaches before the ship has broken ground. 1 Bos. & P. 634 ; 5 Binn. Penn. 392 ; 3 Gray, Mass. 92. But see, as to the damages for re moving goods from the ship before she sails, 28 Eng. L. & Eq. 210 ; 1 C. B. 328 ; 2 Carr. & P. 334; 19 Bost. Law Rep. 579 ; 2 Gray, Mass. 92.