Page:Federal Reporter, 1st Series, Volume 10.djvu/839

 GAYLOBD V. C0PB8. 827 �Gaylord V. COPES. �[Cireuit Court, E. D. Louisiana. November 25, 1881.) �1. Pleading— Pkeschiption— When not Availablb 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 evictcd, his title failing, and his bonds lejected �On Exceptions to Petition. �PlaintifE alleged that on the ninth of August, 1865, defendant, being indebted to plaintiff, gave hitn in payment thereof flve first-mortgage construction bonds of the Vicksburgh, Shreveport & Texas Railroad Company ; that in May, 1879, in a certain suit of Jackson v. Vicksburgh, Shreveport & Texas B. Co. and others, •which had been broughtonbehalf of all theholdersof similar bonds issued by said company, it was finally decided by the supreme court of the United States {Vicksburgh, S. & T. R. Co. v. Jackson, 99 U. S. 513,) that certain of said bonds, those given by the defendant to plaintifE 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, Louisiana, during the late war, and that neither the persons Bo taking them, nor their transferees, had acquired any title thereto. Plaintiff thereupon tendered the bonds back to defendant, and demanded the payment of the original amount of the debt for which defendant gave the bonds, which defendant refused. Defendant pleaded the prescription of flve and ten years. �Kennard, Howe e Prentiss, for plaintiff. �H. N, Ogden, for defendant. �Pakdee, C. J. The exception of prescription in this case is sub- mitted 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 bas been evicted, his title failing, and his bonds being rejeoted. This eviction is charged as taking place in 1879. On this state of facts, the prescription of five or ten years is not acquired. Eev. Civil Code, 2659. See Babin v. Winchester, 7 La. 470. �The exception, theref ore, should be overruled. On the trial, should Buch a different state of facts be shown as to justify the exception of prescription, it can be renewed. ��� �