and others v.
January 5, 1882.)
FINDINGs-AFFIRMANCE ON WRIT OF ERROR.
Where the finding of facts by the district judge IS warranted by tlle proofs, and the new testimony put in this court does not substantially change the facts found, helfl" that the libel be dismissed, with costs.
On Writ of Error. A. S. Cushman, for libellants. David Torrance, for respondents. BLATCHFORD, C. J. The finding of facts by the district judge in his decision in this case is warranted by the proofs, and the new testimony put in this court does not substantially change the facts so found. The conclusion that on those facts the respondent is not liable must follow. The libel alleges that the schooner hauleJ up to and occupied the berth at the derrick provided for the unloading of her cargo of coal, and at the place where she had on previous voyages safely laid for the purpose of discharging her cargoes, and that the respondent was bound to keep that berth safe, but had, by dredging, rendered it un. safe, without notice to or knowledge by the libellants or the master. The master moored where he did without instructions or directions from anyone in the employ of the respondent, and without the knowledge of anyone in the employ at the respondent. The berth 8,t the wharf, for the distance the respondent was bound to excavate, and had excavated, was safe, and would have been safe for this schooner. Her stern extended below the lower end of the wharf to a distance at least one-third greater, and from that to one-half greater, than ever before. The depth of water at her stern was so little that if it had been ascertained by her master that fact would necessarily have indicated danger to him in lying there over low tide, even with the depth at the front of the wharf such as it was before the additional excavation was made. Movement of his stern out· wardly and securing it there would have insured safety as it was. The libel is dismissed, with the costs of the district court, taxed at $130.70, and with costs to the respondent in this court.
GAYLORD V. COPES.
(Circuit Court, E. D. Louisiana. November 25,1881.)
1, PI,EADING-PUESCRlP'fION-WHEN NOT AVAILABLE AGAINST DEBT.
The exception of prescription will not avail against a debt in a case where a debt was paid in stolen bonds of a railroad company, and by reason of the theft the payee had been evicted, his title failing, and his bonds rejected
On Exceptions to Petition.
Plaintiff alleged that on the ninth of A.ugust, 1865, defendant, being indebted
to plaintiff, gave him in payment thereof five first-mortgage construction bondS ()f theVicksburgh, Shreveport & Texas Railroad Company; that in May, 1879, in a certain suit of Jackson v. Vicks burgh, Shreveport & Texas R. Co. and others,
which had been brought on behalf of all the holders of similar bonds issued by said company, it was finally decided by the supreme court of the United States (Vicksbu1'.gh, S. & T. R. Co. v. Jackson, 99 U. S. 513,) that certain of said bonds, those given by the defendant to plaintiff among the number, were not genuine obligations of said railroad company, and had never been issued, but had been carried off by persons belonging to, or taking advantage of, a raid upon the town of Monroe, I.ouisiana, during the late war, and that neither the persons 80 taking them, nor their transferees, had acquired any title thereto, Plaintiff thereupon tendered the bonds back to defendant, and demanded the payment ()f the original amount of the debt for which defendant gave the bonds, which defendant refused. Defendant pleaded the prescription of five and ten years.
Kennard, Howe d; Prentiss, for plaintiff. H. N. Ogden, for defendant. PARDEE, C. J. The exception of prescription in this case is submitted on the allegations of the petition. The allegations of the peti. tion show that the bonds in question were given in payment of a debt; that they were stolen; and that by reason thereof the petitioner has been evicted, his title failing, and his bonds being rejected. This eviction is charged as taking place in 1879. On this state of facts, the prescription of five or ten years is not acquired. Rev. Civil Code, 265!J. See Babin v. Winchester, 7 La. 470. The exception, therefore, should be overruled. On the trial, should such a different state of facts be shown as to justify the exception of prescription, it can be renewed.