Hardy vs. Lemons.

The objection that he was very frequently absent from the boat, is met by the showing that whether on shore or traveling on other boats, he never lost sight of the interests intrusted in his hands; that he constantly labored for the promotion of the boat's business and that the vessel was always skilfully manned by his substitute, Capt. Dugas.

We find abundant evidence showing the unmistakable acquiescence of his co-directors in the manner in which he performed his duties as their manager, and in the amount of salary which he received in compensation thereof. Hence, the prayer for amendment of the judgment must be declined. The conclusions of our learned brother of the district bench are correct on every branch of the case.

The judgment appealed from is therefore affirmed, with costs.

No. 9001.

JACK HARDY VS. JAMES H. LEMONS.-S. W. STREET, INTERVENOR. The joint owner of movable property can make a valid lease of the same, when authorized thereto by his co-owners.

In case that one of the co-owners does not participate in authorizing the lease, his subse quent ratification of the same gives full validity to the contract.

A lessee of movable property cannot be legally divested of his possession of the thing leased.

by means of a sale of the same by the lessor to a third party.

PPEAL from the Civil District Court for the Parish of Orleans.

A Rightor, J.

L. O'Donnell for Plaintiff and Appellee.

Geo. L. Bright and Bayne & Denégre for the Intervenor, Appellant.

The opinion of the Court was delivered by

POCHÉ, J. The salient facts of this suit are stated in the opinion of the case No. 8903, between the same parties, just decided.

After the sequestration of the mare Lucy Johnson, Street intervened in the partition suit for the purpose of enforcing his contract of December 12, 1882, and of asserting his rights of possession of the mare thereunder.

His demand was resisted by plaintiff on the ground that Lemons had no right or authority to bind Triskett and Mullen, his co-owners of the mare, in a contract of lease; that there could be no lease without a fixed price; that the pretended lease was the result of a conspiracy between Lemons and Street, with the intention of defrauding the law

Hardy vs. Lemons.

ful owners of their possession and use of their property; and that the mare was not in Street's possession when sequestered. Plaintiff's defense was sustained in the lower court, whence the intervenor prosecates this appeal.

The evidence is conflicting; but, after a careful analysis of the record we find satisfactory proof of the following facts:

1. That Lemons was the owner of one undivided third of the animal, which was then in his possession, and that he was without funds or means necessary to a proper care and training of the animal.

2. That he had full authority and power, from Triskett, to control and dispose of the mare as he thought proper.

3. That after making the alleged contract with Street, he notified both of the joint-owners of his action, by letters properly mailed to each at his residence.

4. That by letter from Mullen to Lemons, the former unequivocally ratified the contract aforesaid, and highly approved of the same.

5. That the mare was in the custody and possession of Street, when she was seized by the sheriff.

The fact that at the very moment of the seizure, Lemons was leading her around the race track, did not affect Street's possession under his contract. She was kept, fed and handled at his stable near the race

course.

The feature of the contract which provided, as a consideration, the division of the mare's net earnings, instead of a fixed price, did not' invalidate the contract as a lease. The price of the contract of lease "may consist in a portion of the fruits yielded by the thing leased.' Civil Code, art. 2671.

The contract relied upon by the intervenor, therefore, embodies all the elements of a lawful contract of lease, fully binding on Lemons and his co-owners, who could not, in law, defeat intervenor's rights under his lease by a sale of the thing leased.

Hence, we conclude that he was illegally and wrongfully deprived of his possession of the mare, and that the lower court erred in dismissing his intervention.

The judgment appealed from is, therefore, annulled, avoided and reversed. And, it is now ordered and decreed that the mare, Lucy Johnson, was wrongfully sequestered from intervenor's possession; that intervenor was entitled to the possession, control and use of said mare from the 12th of December, 1882, to the 12th of October, 1883,

36 148

State vs. Watson.

and that his right to recover damages for said wrongful sequestration be reserved against all parties responsible therefor.

All costs incurred in the sequestration and costs of this appeal to be paid by plaintiff and appellee.

Rehearing refused.

45 841

No. 9041.

THE STATE OF LOUISIANA VS. PHILIP WATSON.

When in a prosecution for murder the evidence shows that the accused was the aggressor and pursued the deceased with a drawn knife, with which he afterwards gave the mortal stroke, testimony of the dangerous character of the deceased was properly rejected. It is unnecessary to review the ruling of the trial judge, admitting as a dying declaration a statement of the deceased to the effect that the accused had inflicted the mortal wound, in view of the fact that the accused set up the plea of self-defense, which admitted the killing. The accused could not, therefore, be prejudiced by the admission of the declaration, as it only went to prove an admitted fact.

Where, at the opening of the trial, an order is made for the removal of the witnesses from the court room, and a deputy sheriff, a witness for the State, in ignorance of the order, came into the room during the trial, such fact would not of itself operate absolutely to the exclusion of his testimony. The judge could, in his discretion, admit it.

A

PPEAL from the Nineteenth District Court, Parish of Terrebonne.
Goode, J.

J. C. Egan, Attorney General, for the State, Appellee.

L. F. Suthon for Defendant and Appellant.

The opinion of the Court was delivered by

Topp, J. The defendant appeals from a sentence of ten years' imprisonment at hard labor for manslaughter.

He supports his appeal by these bills of exceptions:

1. The first bill was taken to the refusal of the trial judge to admit proof of the violent or dangerous character of the deceased, offered in support of the plea of self-defense.

The judge excluded the testimony for the reason, substantially, that the evidence shows that the accused was the aggressor, and pursued the deceased some distance with a drawn knife before resistance was made by the deceased and before the accused killed the deceased by stabbing him with the knife.

This all appears in the bill. The ruling under such a state of facts was correct. To admit the proof offered there must have been threats made and communicated, followed by some act on the part of the de

Foucher vs. Kenner.

ceased to induce the belief or apprehension that the threats were about being carried into execution. Wharton Crim. Law, § 641, and authorities there cited; State vs. Ricks, 32 A. 1099; State vs. Jackson, 33 A. 1087.

2. The second bill is taken to the admission of a declaration of the deceased, after receiving the wound, that such wound was inflicted by the accused. It was offered and received as a dying declaration.

Considering the character of the defense, as shown by the first bill above recited, that the killing was justifiable because done in selfdefense, and that it is an elementary principle that such plea admits the killing, we cannot discover of what possible significance the admission of the declaration in question could have been. It at most could only have amounted to cumulative evidence of a fact that was already admitted by the accused; that is, of the killing of the deceased by him. Had this declaration referred to any of the attending circumstances of the homicide, tending to establish the guilt of the accused, then the question of its admissibility would properly have arisen. But it did not so refer, but related only to the fact whether the accused inflicted the fatal wound. The admission of the declaration could not therefore have possibly prejudiced the accused, and it becomes unnecessary to decide whether it was properly received or not.

3. The third bill is to the admission of the testimony of a witness for the State, against the objection that an order for the removal of the witnesses from the court-room had been made at the opening of the trial and that this witness had remained therein, or returned to the room in disobedience of the order.

It appears that this witness was a deputy sheriff and was absent from the court-room when the order was given and knew nothing of it.

We think, under these circumstances, that the testimony of this witness was not absolutely inadmissible, but was subject to the discretion of the judge; and we cannot say that its discretion was improperly or unwisely exercised in this instance. Bishop on Crim. Pro. vol. 1, secs. 1086, 1087, 1088.

The judgment is therefore affirmed.

No. 8367.

FRANK E. FOUCHER VS. DUNCAN F. KENNER.

A sheriff or United States marshal cannot be made responsible, in damages, for executing a judgment, recognizing a privilege upon property provisionally seized in the suit, by the seizure and sale of said property.

Foucher vs. Kenner.

Where, in such a case, upon the demand of a third person claiming ownership of said prop. erty, an indemnity bond has been furnished, conditioned for the payment of such damages as might be recovered against the marshal in consequence of such seizure, the surety on such bond cannot be held for any damage other than those for which the marshal might have been liable, and, inasmuch as the marshal could be responsible for none, the action must fail.

A'

PPEAL from the Civil District Court for the Parish of Orleans.
Monroe, J.

Chas. S. Rice for Plaintiff and Appellant.

The laws of the State giving to sheriffs the right of demanding from a party scizing personal property, claimed by a third person, a bond of indemnity, is, by Act of Congress, made applicable to the marshal of the United States, in similar case of seizure under process, mesne or final, issuing out of the Federal courts sitting in the State. Rev. Stat. of La. secs. 3579, 3581, 3584; Rev. Stat. U. S. secs. 914. 915, 816; Acts of Congress of 1824, U. S. Stat. at Large, vol. 4, pp. 62 and 63; Moncure vs. Zuntz, 11 Wal. 416, 421: Barras vs. Bidwell, 3 Woods 5, 8, 9.

The right to demand such indemnity bond extends to ALL cases where the property so claimed was seized, whether under mesne or final process. Rev. Stat. of La. 3579. Even under the theory of defendant, the marshal was not protected in seizing other property than that specifically mentioned in the writ; and, therefore, if he failed, through his own fault or the directions of a party, to keep himself strictly within the mandatory clause or the process, he was liable to the person damaged by his acts, and had the legal right to release the property seized at the demand of a third person claiming superior title, or to demand bond of indemnity from the party seizing. Buck vs. Colbath, 3 Wal. 343 et seq.; Elmore vs. Hufty, 13 A. 227.

A third person is not estopped from suing on an indemnity bond, so given, because, after the same was given and assigned to him, he attended the sale and bid on his own prop erty, and afterwards bought it at private sale from the person who purchased it at the marshal's sale.

The lier of the landlord for rent does not extend to movables removed more than fifteen days from the leased premises, or which, though removed within a shorter time, have ceased to be the property of the lessee. C. C. art. 2709; Sillman vs Short, 20 A. 513; Hughes vs. Caruthers, 20 A. 530; Bailey vs. Quirk, 20 A. 432; Merrick, Race & Foster vs. LaNache, 27 A. 87.

The facts proved in this case establish ownership in plaintiff in, at least, 3390 cross-ties worth $1,258 06, which were not subject to the len of the landlord but seized and sold at the landlord's instance.

J. D. Rouse for Defendant and Appellee.

The United States marshal is without authority to exact a bond of indemnity for the execution of process issuing from a Federal court. The State statutes authorizing a sheriff to exact such bonds has not been adopted by any statute of the United States.

A sheriff cannot be made responsible for the execution of a judgment by seizure and sale of any object upon which the judgment confers a privilege 13 A. 227; 14 A. 142.

The officer being without right to require a bond in the premises, it is a non-judicial bond, and no action lies upon it 27 A. 557: 23 A. 222; 7 A. 570; Ib. 539; 28 A. 244; 16 La. 174; 22 A. 535.

Where no breach of the condition of a bond is alleged or shown there can be no recovery upon it. 12 How. Rep. 168; 14 Chicago Legal News, 297.