Torrey v. The Grant Locomotive Works.

limited by subdivision 3 of section 639, although not within the time limited by section 3 of the Act of 1875; but, even if he claims the benefit of the longer time allowed by section €39, he must give the bond prescribed by the Act of 1875. He has not given such bond. The bond he filed contained no provision for costs.

It was held by Judges McKennan and Cadwalader, in McMundy v. The Connecticut General Life Ins. Co., (9 Chicago Legal News, 324,) that the Act of 1875 takes the place of all former Acts, in the requirements which it makes. for the removal of all causes to which it is applicable; that, even though a removal was sought under section 1 of the Act of March 2d, 1867, (14 U. S. Stat. at Large, 558,) embodied in subdivision 3 of section 639, of the Revised Statutes, the requirement of section 3 of the Act of 1875, in regard to the nature of the bond, extends to such a case, as being a case mentioned in section 2 of the Act of 1875; that, to that extent, at least, the Act of 1875 repeals all prior Acts on that subject; that the filing of the bond conditioned as required by the Act of 1875, is a condition precedent to the removal of the cause to the Federal Court; and that, if the required bond has not been filed, that Court has no jurisdiction, although it belongs to that Court exclusively, and not to the State Court, to decide that fact.

The plaintiff's motion to take from the files of this Court the papers which the defendants have filed here is granted.

Joseph H. Choate, for the motion.

George H. Forster, opposed.

Avery v. The Town of Springport.

NOYES L. AVERY 28. THE TOWN OF SPRINGPORT.

A statute authorizing a town to issue bonds in aid of the construction of a railroad, provided that the bonds should be under the hands and seals of commissioners. They issued coupon bonds which were not sealed, although their wording showed that sealing was intended, and the coupons were not sealed: Held, in a suit on the coupons, that the bonds and coupons were void. (Before JOHNSON, J., Northern District of New York, June 28th, 1877.)

JOHNSON, J. The material question in this case is, whether the execution of the instruments called bonds was sufficient in form to bind the defendant. The statute under which they purport to have been issued was a law of New York, entitled, "An Act to facilitate the construction of the Cayuga Lake Railroad, and to authorize the town of Springport, Cayuga County, to subscribe to the capital stock thereof," passed April 24th, 1869, (N. Y. Laws of 1869, vol. 1, p. 677). The 2d section of the Act is the only one which authorizes any one to bind the town for the payment of money in aid of the railroad to be constructed. It enacts, that "it shall be lawful for the said commissioner or commissioners" (for whose appointment provision was made by the 1st section) "to borrow on the faith and credit of the said town a certain sum of money, at a rate of interest not exceeding seven per cent., for a term not exceeding thirty years, and to execute bonds therefor under their hands and seals. The instruments sought to be treated as bonds under the statute are not under seal, although their wording shows that sealing was contemplated, as a necessary part of their execution. This action is brought upon a certain number of coupons detached from bonds so executed without seals. The coupons are not themselves sealed, nor are any of them executed by the signature of more than one commissioner. They are, therefore, subject to all the difficulties which the bonds are liable to. The defect, if it be one, being in the execution, which does not pursue the direction of the statute, neither the plaintiff nor any one

Avery v. The Town of Springport.

else can have become possessed of the bonds without knowledge of the absence of seals and of the requirements of the statute in that regard. This action is on the instruments, and the recovery can be only had on them. The law which authorizes bonds to be issued prescribes the form and mode in which they are to be executed. They are to be under the hands and seals of the commissioners. Instruments under their seals and not under their hands, or under their hands and not under their seals, are alike not executed in conformity with the statute, and are alike inoperative to create an obligation against the town. The principle is involved in The People v. Mead, (24 N. Y., 114,) where instruments called in the statute bonds were held properly executed without being sealed, the Act directing their execution to be under the official signatures of certain designated officers, and that mode of execution having been employed. Various cases have been cited showing that a party required to give an instrument under seal, cannot, in an action against him, insist on his own omission to seal the instrument, as a defence. Such was the case of an unsealed bond on attachment, (Kelly v. McCormick, 28 N. Y., 318,) and the case of United States v. Linn, (15 Peters, 290,) where the bond of a surety for a receiver of taxes was unsealed. The Court held, in that case, that the instrument was a good obligation at common law, unsealed. Other cases resting on the same grounds are cited, but none of them give any countenance to the idea that a mere statutory power can be so executed as to impose an obligation, unless the statutory authority is pursued. In Town of Coloma v. Eaves, (2 Otto, 484, 489, 490,) stress is laid upon the fact that the execution of the instruments was in exact conformity with the provisions of the statute; and it is held, that, by such an execution, the statutory prerequisites to the issuing of the bonds are established in favor of a bona fide holder for value. In the same case, the doctrine of the Courts of the United States is stated, perhaps, in its broadest form, in support of the rights of bona fide holders of municipal bonds, so far as compliance with precedent conditions prescribed by statute is concerned, where

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1,265 Vitrified Pipes, &c.

the requisite legislative authority has been given to a munici pal corporation, or its officers, to issue municipal bonds. But, in none of the cases have I found even an intimation that anything will serve to supply the want of an execution such as the statute calls for. Indeed, it seems plainly to result from the fact that the power originates only from the statutory grant, that the statute must be followed in order to make out an execution of the statutory power.

The verdict must be set aside for the erroneous ruling at the Circuit in respect to the want of the seal, and a new trial must be ordered, with costs to abide the event.

James R. Cox, for the plaintiff.

George F. Danforth, for the defendant.

1,265 VITRIFIED PIPES, &C.

Under an ordinary bill of lading, freight is demandable only when the goods are discharged from the vessel and an opportunity is had for their examination by the party who is to receive them; but the carrier is not bound to part with the possession, or to make actual delivery, except upon payment of the freight.

Neither party can require of the other, as of right, that goods under one bill of lading shall be delivered in parcels, on the freight of such parcels being separately paid.

Where a carrier of goods by a vessel stood upon his legal right not to deliver s cargo, or any part of it, till payment of the freight, and the consignee of the cargo stood upon his right not to pay the freight until the cargo was die charged ready to be completely delivered upon payment of freight, and subsequently the cargo was landed, but no notice was given to the consignee nor any demand made upon him for the freight: Held, that a suit against the goods for the freight was prematurely brought, when brought before such notice or demand.

Where the amount involved in an Admiralty suit is not sufficient to permit review by the Supreme Court of the judgment of the Circuit Court, a general finding of facts and law by the latter Court is sufficient, under the Act of February 16th, 1875, (18 U. S. Stat. at Large, 315, § 1.)

(Before JOHNSON, J., Southern District of New York, July 19th, 1877.)

1,265 Vitrified Pipes, &c.

JOHNSON, J. The rule of law in respect to the delivery of merchandise from vessels is well settled. Under the ordinary bill of lading, the freight is demandable only when the goods are discharged from the vessel, and an opportunity is had for their examination by the party who is to receive them. On the other hand, the carrier is not bound to part with the possession, or to make actual delivery, except upon payment of the freight. Neither party can require of the other, as of right, that goods under one bill of lading shall be delivered in parcels, on the freight of such parcels being separately paid. All such arrangements rest upon the special agreement of the parties concerned, and not upon the general law. In Clark v. Masters, (1 Bosworth, 177, 185,) Duer, Ch. J., states the rule thus: "The consignee is not bound to pay the freight until the goods are delivered, nor the master to deliver the goods until the freight is paid. If the goods are withheld, the freight must be tendered, if the freight, the goods, to enable either party to maintain an action against the other for a breach of contract." In the case of The Eddy, (5 Wall., 481,) Mr. Justice Clifford, giving the opinion of the Supreme Court of the United States, says: "Delivery on the wharf, in the case of goods transported by ships, is sufficient under our law, if due notice be given to the consignees, and the different consignments be properly separated, so as to be open to inspection, and conveniently accessible to their respective owners. Where the contract is to carry by water, from port to port, an actual delivery of the goods into the possession of the owner or consignee, or at his warehouse, is not required, in order to discharge the carrier from his liability. He may deliver them on the wharf; but, to constitute a valid delivery there, the master should give due and reasonable notice to the consignee, so as to afford him a fair opportunity to remove the goods, or put them under proper care and custody."

The question in this case, therefore, is, whether the libellants, at the time the libel was filed, were in that condition, in respect to the goods in question, which entitled them to de