ALLEGRO v. LEBER.!
(Circuit Court, E. D. New York. June 2Ii,1884.)
The conclusion of the district court in the same cases (see The Ismaele, 14 FED.' REP. 491), was not affected by further testimony, taken in the circuit court, of persons who took part in weighing the cargo. There being no direct evidence of a felonious abstraction of cargo, and the testimony on the part of the vessel being explicit that all the cargo received on board was delivered ex· cept sueb 8S passed off through the pumps, the court had no hesitation in re" jecting the former view, and the decrees of the district court were affirmed. 1'he lsmaele, 14 FED, REP. 491, affirmed.
OF LAnING-CARGO NOT DELIVERED-BURDEN OF PROOF-EVIDENCE.
Admiralty Appeal. Sidney Chubb,for the consignee. Ullo « Davison, for the vessel and the master. BLATCHFORD, Justice. The views and conclusions of the district judge in his opinion delivered in .these cases, on the evidence as it then stood, were unquestionably correct. He observed that there was no legal proof of the actual weight of the sulphur shipped; that the persons who did the weighing, and whose names were disclosed, were not examined; that this omission, under the circumstances, was one that could not be overlooked, and that it left the testimony respecting the weight of the sulphur shipped incomplete, and insufficient to over· throw the testimony, in behalf of the bark, that all the sulphur shipped was delivered in New York. Since the appeal was taken the libelant has taken the testimony, on commission, of three persons who took part in weighing the sulphur. One of them was at the time between 15 and 16 years old. The others were of full age. No one connected with the vessel was present at the weighing otr shore, and there was no weighing on board of the vessel. i'he sulphur was in bulk, and after the weighing was carried by hand to boats and dumped into them, and carried in them to .the vessel, which was anchored two miles off, and was lifted from the boats and dumped into the hold of the vessel. The testimony on the part of the vessel is explicit that all the sulphur received on board was delivered here, except such as passed off through the pumps. Under these circumstances, the weight delivered being less than the asserted weight on shore, and a finding that some of the sulphur was abstracted feloniously, without the slightest direct evidenoe of tha,t fact, involving the finding that a crime was committed; and a finding that the vessel delivered all that it received, less what was lost through the pumps, involving only an enor in the weighing, there can be no hesitation in the judicial mind in rejecting the former view. In the first suit there must be a decree for the libelant for the £1.0
by R. D, & Wyllys Benedict,of the New York bl\r
gratuity, with $82.65 costs in the district court, as taxed, and costs in this court to be taxed; and in the s.econd suit the libel must be dis-missed, with $85.35 costs in the district court, as taxed, and costs in this court to be taxed.
GREAT WESTERN STEAM
(Circuit Oourt, E. D. New York. June 23, 1884.)
COMMON CARRrER-WAREHOUSEMAN-DELIVERy-PERISHABLE CARGO-USAGE. The decree of the district court in the same case (17 FED. REp. 695) affirmed.
In Admiralty. Beebe, Wilcox d: Hobbs, for libelant and appellee. Charle8 E. Crowell, for claimants and appellants. BLATCHFORD, Justice. I concur fully in the opinion of the district judge in this case as to the facts and the law. The libelants are entitled to a decree for $841.20, with interest from December 31, 1881, and their costs in the district court, taxed at $201.95, and their costs in this court to be taxed.
See the opinion of the district court in the same case, (reported as Liver· pool &: (heat Western Steam Co. v. Suitter and otlters,) 17 FED. 695.
DE GRAU V. WILSON.
(Oircuit Court, E. D. New York. June 23, 1884.)
BILl, OF LADING-COMMON CARRIER-WAREHOUSEMAN-DESTRUCTION OF GoODS BY FIRE-BUltDEN OF PROOF-NEGLIGENCE. The decree of the district court in the same case (17 FED. REP. 698) affirmed.
In Admiralty. . R. P. Lee, for libelants and appellants. Foster d: Thomson, for respondents and appellees. BLATCHFORD, Justice. The conclusions of fallt and of law arrived at by the district judge in his decision seem to be warranted by the evidence. He had the advantage of seeing the witnesses and hearing their testimony. The case is one depending largely on thecredibility of witnesses and the ascertainment of facts. The additional proofs taken in this court do not vary the case. There must be a decree dismissing the libel, with costs to the respondents in the district court, taxed at $114.43, and in this court to be taxed.
17 FED REP. 698.-[REP.
See the opinion of the district court in the same case, (De fJrau v. Wtlson,)
1Reported by R. D. ,. Wyl1;ys Benedict, of the New York bar.