Wooster v. Salzman , 14 La. 98 ( 1839 )

Eustis, J.,

delivered the opinion of the court.

This is an appeal from an order of the judge of the District Court, setting aside an order of arrest and sequestration, which had been issued against the defendant.

The plaintiff, a keeper of a boarding-house in the city, obtained an order of arrest against the defendant, on an affidavit, that she verily believed the defendant was about to remove from the state, without leaving in it sufficient property to satisfy her demand; that the sum of one thousand seven hundred and thirty-seven dollars and ten cents is due her for board, lodging and extras, furnished to the defendant and his family, from June, 1838, to April, 1839 ; that she fears the defendant may remove his baggage and other moveables, which are now in her house, out of the jurisdiction of the court. The defendant was arrested, and his effects sequestered.

We consider that the evidence affords good grounds of belief of the truth of the plaintiff’s affidavit. When persons intend to leave a place, under the circumstances in which the defendant is situated, that intention is rarely made known beforehand ; it is difficult to establish the intention by positive testimony, and it can only be inferred from the acts and conduct of the party, and of those whose relations with him assure to them the means of knowing his intentions.

By the 218th article of the Code of Practice, the debtor may be discharged from arrest, by disproving the facts alleged on which the arrest was ordered. We do not consider the evidence adduced, as by any means disproving them. Had the defendant any fixed domicil, a question would arise as to the application of the article 3200 of our code. But domicil is dependent, in a case like this, on intention ; the intention of the party is, according to the affidavit, to remove from the state. This could be rebutted, so far as relates to the sequestration, by showing that the party had a fixed, permanent domicil here in the city, and in that event the property would not be liable to the pledge of the inn-keeper. See article 3202.

Under the evidence, we consider that the property of the defendant is subject to the privilege of the-inn-keeper. The judgments of the District Court are, therefore, reversed, and the orders of arrest and sequestration are re-instated. The appellant to pay costs, and the cause remanded for further proceedings.