DONOVAN v. A CARGO OF Two HUNDRED AND FORTY TONS Oll' COAL.
(District Court, E. D. New York.
July 25, 1881.)
Where a cargo of coal was transported from Port Johnston, New .Jersey, to New York, an<,l, the boat being sunk at the consignees' dock after arr val, the cargo was abandoned by the consignees to the underwriters, who raised the boat 'and ordered it, with the coal, to Brooklyn for sale to S. & Co., and the master being refused payment of freight by the consignees and S. & Co., who , received it, brought suit therefor and attached the coal in Brooklyn: Held, ! that, the boat not having been abandoned, the contract of affreightment was not terminated by the abandonment of the cargo to the underwriters; alld the subsequent delivery of the coal at another dock was such a performance of the contract as entitled the master to his freight. That, under the custom of' delivery proved, the lien of the master upon the carg-o for his freight was not waived or lost by the delivery to S. & Co. without prepayment of freight, but remained in full force.
J. A. Hyland, for libellant. Ghas. D. Warner, for claimants.
BENEDIOT, D. J. The libellant is entitled to a decree for the freight remaining unpaid. When the boat sank at the dock where the coal wa,s to be delivered, the coal was abandoned to the underwriters by the consignees thereof, but the boat was not abandoned by the boatowner, nor was the possession of the boat surrendered to the party who raised the boat and the coal. By the abandonment of the coal to the underwriters the libellant's contract was not terminated, nor was his right to earn the freight by delivering the coal lost. The subsequent transportation of the coal by the libellant to another dock, designated by the underwriters, and the delivery of the coal in accordance with the direction of the underwriters, was equivalent to a delivery of the coal at the place first selected, and was a performance of the contract set forth in the bill of lading. The coal, when so delivered, was subject to a lien for the freight then unpaid, which might be lost by an unconditional delivery, but in the absence of an nncon· ditional delivery still attached to the coal in the hands of the parties who received it from the vessel. Upon the evidence, and in view of the custom proved, the delivery in this case was not unconditional, and consequently the lien for the freight remained in full force. Let a decree be entered for the amount claimed, with interest and costs.
TOWN Oll' LYONS V. LYONS NAT. BANE.
TOWN OF LYONS 'lJ. LYONS
(Circuit Court, N. D. New York.
DISTRICT CoURT JUDGES-ISSUES OF FACT.
May 28, 1881.)
Judges of the district courts of the United States are not acting in a judicial capacity when engaged in finding issues of fact.
2. SAlm-QUEsTIONS OF LAW-ApPEALS.
Questions of law, arising in such court upon fact3 so found, are not open to revision upon appeal. 3. LA.WS OF NEW YORK, (1869,) c. 907, p. 2305, § 4, CONSTRUED. The provisions of chapter 907, § 4, of the Laws of New York of 1869, as to interest on certain bonds and the time of its payment, is directory only. 4. PRACTICE IN FEDERAL COURTS. The attorneys for the respective parties to a suit at law, brought in the district court of the United Statcs, by a written stipulation waived a jury trial, and agreed that the court should hear the action "without a jury.' 'The action was tried; a written decision was filed, finding certain facts and certain elusions of law thereon, and a judgment entered. The cause was afterwards taken to the circuit court ou a writ of error. Hdd, that the rulings on findings of fact, and the conclusions of law connected therewith, were not open to revision, as facts so found were found in a way unkno.vn to the common law, nor yet provided by statute.
O. II. Roys, for plaintiff in error. W. F. Oogswell, for defendant in error. BLATCHFORD, C. J. This is a writ of error to the district court. The record discloses a suit at law, brought in the district court by the Lyons National Bank, a banking institution, incorporated under the authority of the United States, against the town of Lyons, to recover $3,675, with interest, as the amo,unt of certain coupons which became due in April, 1874, October, 1874, and April, 1875, on 35 bonds of $1,000 each, bearing interest at the rate of 7 per cent. per annum, payable semi-annually, purporting to have been issued by the town of Lyons in aid of the Sodus Bay, Corning & New York Railroad Company. The defendant put in an answer to the complaint, setting up various defences. The attorneys for the parties then signed a written stipulation that a trial by jury in the· action be waived, and that the action be "heard" by the district judge at his chambers, at a day and place specified in the stipulation, "without a jury. "The action was brought to trial before the district judge without a jury, and on the sixteenth of July, 1879, he filed in the court a written decision, finding certain facts and certain conclusions of law thereupon, concluding with one that the plaintiff is entitled to judgment for $4.814.03, with eosts. On the same day a judgment in v.8,no.6 -24