
    No. 87.
    John J. Dillon vs. V. L. Porier.
    •Tho lessor who takes a provisional seizure before the rent is due, when he acts without malice and in the honest belief or fear that the lessee will remove his property from the leased premises, does not thereby render himself liable in damages, even if the lessee did not have any fraudulent intent of saving his property from the lessor’s privilege for rent.
    ApPEAL from the First District Court, Parish of Caddo. Taylor, J.
    
      Alexander <& Blanchard, for Plaintiff and Appellee:
    1. A reconventional demand for damages for the wrongful suing out of a wiit of provisional seizure, cannot be set up by defendant in his answer, where both parties reside in the same pai ish. C ■ P. 375, 37(3; 5 An. 248; 12 An. 114 ; 24 An. 208.
    3. The wiit of provisional seizure, unlike all other conservatory writs known to the law, is not based upon any unlawful or fraudulent intent on the part of defendant. It is the fact of the removal, or intended removal, of the property, and not the intent with which it is done, or contemplated to be done, that gives ground for its issuance The lessor’s privilege can only he maintained by keeping the property on the leased premises, and it is just as effectually destroyed by an honest as by a fraudulent removal.
    3. The lessor is entitled to the writ whenever “ho has good reasons to believe that the lessee will remove the property out of the premises, and that he may thereby be deprived of hia lien.” He is not required to swear or prove that the lessee intends by such removal to defraud him, or to avoid payment of the rent. C. P. 287.
    
      4. “ The facts or acts which constitute reasonable ground in such cases, are not required to be so complete and convincing as are necessary to support a conviction in a criminal charge. They need only be sufficient to rebut any presumption of malice or wantonness in suing out the writ.” 31 An. 184.
    
      Land & Land, for Defendant and Appellant:
    1. There are only three causes, reasons, or grounds, on which the law permits a lessor to obtain the provisional seizure of the property of his lessee before the rent is due; and they are as follows; 1st. "When there has been an actual removal. 2d. When there has been a/n attempt to- remove. 3d. When there has been an intention to remove the property out of the leased premises, in order to deprive the lessor of his lien on the same. O. P. 2S7. ^
    2. When one and all of these reasons have no existence in fact, a provisional seizure for rent ibefore it is due, is wrongful, illegal and malicious, and the law obliges the lessor, by whose act damage is caused to his lessee, to repair it. R. C. C. 2315; C. P. 295. This Article of the Code of Practice makes the plaintiff responsible for all damage suffered by the defendant by a wrongful seizure of his property without malice.
    
    
      3. When the uncorroborated testimony of a lessor, in a suit for rent before it is due, is contradicted by the testimony of the lessee, the defendant in the suit, and the testimony of the lessee is corroborated by two credible witnesses, who. had a knowledge of the facts, then there is no evidence before the court on which a judgment can be rendered sustaining the legality of the lessor’s seizure, or his right of action when the suit was'instituted. Borden vs. Hope, 2t An. 581.
    4. A part payment or discharge of rent by the lessee, before it is due, is not a novation of the contract of lease, nor a waiver of the rights of the lessee to pay the rent at the periods stipulated in the lease. R. C. C. 2190.
    5. A payment of rent to an agent authorized to receive it, is a payment to the lessor himself. R. C. C. 2985.
    6. An agent is bound to restore to his principal whatever he has received, by virtue of his procuration, even should he have received it unduly. R. C. C. 3005.
    He is obliged to render an account of his management to his principal, and is answerable for the interest of any sum of money he has employed to his own use, from the time he has so employed it, and for that of any sums remaining in his hands, from the day he becomes a defaulter by delaying to pay it over. R. C. C. 3004, 3015.
    An agent cannot apply the money of his principal to the payment of his own debts, nor to the debts due by third persons. 6 An. 40; 19 An. 300.
    The agent of the plaintiff in this case was as much bound to pay him the proceeds of the rent cotton, as if he had given his bond,' or his written acceptance to him for the payment. 10 R. 481; 2 An. 25.
    7. The new doctrine of suppositions, or of possibilities in human affairs, as to what an agent or ' a lessee might possibly do, has no resting place, or recognition in our jurisprudence, for, if it had, then every debtor in the State would be subject to arrest, attachment, sequestration, and injunction, and every lessee to provisional seizure, on the mere affidavit of his creditor, or of his lessor, however false, malicious, or injurious it might be to him.
    The law does not presume bad faith, dishonesty, ov fraud, in past, present or future time. The allegation must be proved by legal evidence in all cases. R. C. C. 1848.
    8. The defendant had the right to reconvene in liis. answer, by way of exception, for the damages which he had suffered by the illegal seizure of bis property. O. P. 20; Solomon vs. Cavalier, 4 An. 136.
    His demand is connected with and incidental to the seizure, which is not only-a part, but the foundation of this suit.
    There was no bond and security given by the plaintiff on. which a suit for damages could be instituted; there is no security or third person who could he affected by a judgment against the plaintiff for damages.
    It is only in case of arrest, attachment, sequestration, and injunction, that the plaintiff is required to give boudand security, on which the defendant may institute suit for damages; but in cases of provisional seizure, no bond and security aro required, or given, and the lessee’s claim for damages is by personal action agaiust the lessor, or by reconvention when sued, by way of exception. C. P 20, 295, 377.
    The law abhors a multiplicity of suits.
    The plaintiff objected to the introduction of evidence to prove damages, but he did not state specially his objections, nor did betake any bill of exceptions. Heiss vs Corcoran, 15 An. 694: Stewart vs. Harper, 16 An. 181.
   Tlie opinion of the Court was delivered by

Manning, J.

The defendant, Porier, leased a part of a plantation from Mrs. Hart for the years 1881 and 1882, the stipulated rent being sixty bales cotton of a specified weight and grade, of which forty were to be delivered to the lessor, at the gin house of the plantation, during October, November and December of the first year, and the residue at the same place and time of the second year. Mrs. Hart sold and.transferred this lease to the plaintiff, Dillon, with subrogation to all her rights as lessor. J. C. Soape was her commission merchant, and Dillon agreed that he should have the selling of this rent cotton.

On October 3,1881, Dillon instituted this suit, and obtained a writ of provisional seizure, under which twenty seven bales of pressed cotton and five in seed and five in lint, and four mules, their harness, and a wagon, were seized, the appraised value of the whole being $2,275. The property was released on bond, with Soape as surety, and in answer to the suit, the seizure was alleged to have been malicious, and it was denied that the plaintiff liad reason to believe or fear a removal of the cotton. The defendant also averred that no part of the rent was due when the suit was instituted, and prayed for $2,250 as damages.

Lessors can use the writ of provisional seizure to secure the payment of rent not due, as well as that which is due, the only difference being in contingent liability for costs in certain events. Code of Practice, Art. 287. The question here is, whether the plaintiff had good reason to believe that the lessee would remove the property from the leased premises, and was thus justified in using the writ.

Failure to pay the rent has been' held to constitute good grounds for believing that the tenant will not pay, and will remove the property. Heirs of Lalaurie vs. Woods, 8 An. 366 ; Shiff vs. Ezekiel, 23 An. 383.

About the time Dillon was contemplating the probable necessity for seizure, nine bales of cotton were sent by Porier to Soape, for Dillon’s ■ account. He seems to have apprehended that was all that would be sent. The suit was filed, and Dillon accompanied the sheriff to the plantation, for the purpose of ascertaining with reasonable certainty whether the quantity of cotton necessary to pay the rent was to be sent to Soape for him. ITe could get no satisfaction. Porier was sullen and angry. Dillon directed the sheriff to execute his process. Porier, as a witness, swears he intended to deliver enough cotton to pay his rent, and Soape knows of no reason for Dillon to believe or think or fear the contrary. Soape was the factor of Porier, and his creditor for supplies, and "would have held the latter’s cotton for Dillon’s account, if' so instructed by Porier specially ; but otherwise, would have placed proceeds of its sale tó his own account against the defendant. This was just what Dillon feared. It was not at all unreasonable or unnatural for Dillon to believe, that Porier, in sending the cotton to Soape, as all agreed was to be done, should either negligently or purposely omit any instruction as to its destination, and in that event, Soape says he should have looked after his own interest.

Dillon and Soape had each a privilege. The enforcement of Dilloji’s would depend on the non-amotion of the cotton,'or his ability to pursue it within a given time. He, was not obliged to run any risk. He had a right to seize, and the whole testimony negatives the charge of malice.

Our law wisely provides. the lessor with drastic remedies for a lessee’s failure to pay his rent, and it is as much in the interest of the one as of the other. Tenants are more numerous than proprietors. He who has no house of his own to shelter his family, or no land of his own to cultivate, has need to use that of others, and can more easily obtain it and on easier terms if the law assures the landlord the payment of his rent by affording.him exceptional facilities for enforcing its payment. Hence, the conditions under which,a lessor may use the writ of provisional seizure differ from those attending the other, conservatory writs. .

• Fraudulent intent on the part of the lessee is not an essential element in such case. Nay, the best and- most honest intent will not avail him, because the crucial inquiry is, not whether the tenant did or did not intend to pay his rent, but whether he intended to remove the property upon which the privilege rests of securing its payment. •The lessor has good reason to believe that the lessee will remove from the premises the property upon which he has a privilege, and thereby deprive him of his lien, the sole condition for the issuance of the writ exists. The intention of the lessee in removing it may be honest-. His purpose may be thus to obtain the means for paying the rent, but that in nowise impairs the right of the landlord to prevent the removal by a seizure. While on the premises, it is absolutely subject to the landlord’s claim. If removed, he has only a limited time to pursue-it, and only-while owned by his tenant. The law, therefore, does not require that he shall concern himself about his lessee’s honest intent to pay, but only whether Ms intent is to remove the property and destroy the lien, whether the motive of the removal be good or bad.

Tiie plaintiff did no more than use process provided expressly for the better security of landlords,.and so the lower court adjudged.

Judgment affirmed.

Fenner, J., not being present at the argument, takes no part in this decision.  