On the Merits.
The following are the issues propounded by the defendants and by the intervenors:
1. The property was in custodia legis, and the plaintiff had no reason to believe that it would be removed.
2. The intervenors are the sub-tenants of the property and not third persons.
3. The terms of payment not having matured, the plaintiffs are not entitled to the payment of the whole rental.
The defendants, we have seen, had transferred all of their goods, on which plaintiff had a lessor’s privilege, to a corporation of which *796they were the principal organizers and of which they owned at the time seven-eighths of the shares.
This corporation, in its application to liquidate, alleged its embarrassed condition.
It applied for an order to sell the property: ; This involved its removal.
The plaintiffs were not bound by the proceedings in liquidation.
The sale of the liquidators of a partnership, or of a corporation, with the view of settling its-.-affairs; pan not; have the effect of compelling the lessor to resort to a rule or third opposition to assert his rights.
It does not affect the lessor’s right,to, keep the thing pledged until he be paid. It detracts nothing from the lessor’s right Jo distrain them for rent.
It was not such a custody of the law as to bring to an end the exercise of all privileges upon the goods, save as against the liquidators and commissioners. They are to be looked upon as goods removed.
When the corporation petitioned to discontinue the proceedings in liquidation, A. and I. Meyers were the owners of 268 of the 820 shares, the entire number.
They had a controlling interest.
They could not as owners of this controlling .interest make a disposition of property to the prejudice -of, their, firrp or personal indebtedness.
The corporation was a separate entity, but these shareholders did not, because of a separate juridical being, escape alljtheir obligations as debtors.
They sought through the agency of the corporation the removal of the property; in thus seeking they became subject to the provi - ssional seizure that was issued.
This brings us to the second proposition, that, relating to rights of the lessor against third persons and to the rights of a sub-lessee.
If the corporation of A. Meyers, & Bro. Company, Limited, was the sub-lessee, it devolved upon it to disclose the title on which it oc- : cupied the premises.
It does not satisfactorily appear that the corporation-was the subtenant.
*797There is nothing in the proof directly defining the relations between this company and the defendants. The former succeeded,to the business, continued as the successors of, the latter.
It is1 not stated in evidence that they, by contract- or stipulations of any kind, became the sub-tenants of the vendors of the, goods.,
“ The fact that a person other than the lessee is found in possession of demised premises is presumptive evidence that he is an asr signee and not an under-tenant, especially if he has paid rent to the original landlord.” Wait’s Actions and Defences, Vol. 4, verbo Lease.-
There was-a prohibition -in the lease to sub-lease.
The lessor has the right to renounce the prohibition expressly or even tacitly.
As to the latter, if the property had been sub-leased to the knowledge of the lessor and he had approved the sub-lease, this directly implies his consent to renounce the prohibition. But the mere silence of the lessor will not have that effect.
The lessor in this case has remained silent, but has not either directly or indirectly given consent to any sub-lease.
Our attention is directed to the case ' of Ereeland. vs. Hyllester & Oo., 24 An. 450.
The'record of the case in the clerk’s, office discloses that the defendant, by contract in writing, had sub-leased the property to Vintén, the intervenor, to which the plaintiff consented, and, after having consented, directed his agent to suggest to the sub-lessee the propriety of holding the rental subject to his order.
The intervenor was therefore a sub-tenant.
The intervenors in the case at bar were not sub-tenants, with the consent either expressed or implied of the plaintiffs.
This right of pledge affects third persons, when their goods are contained in the house or store by their own consent, express or implied. O. O. 2707.
Without the consent of the owner the premises could not be subleased, and the proprietor was not bound to take any action further than necessary for the protection of his interest. .
This court, interpreting the concluding clause of Art. 2696, holds that the prohibition to sub-let is always construed strictly against the lessee. Cordeviolle vs. Redon, 4 An. 40.
Considering these propositions, supported as they are by a number of decisions of this court,-we conclude that plaintiffs’ action -was properly maintained.
*798The plaintiffs’ claim that all the rent is due; that defendants’ action has the effect of changing the indebtedness to a cash basis.
In deciding this point we take into consideration the circumstances of the abandonment, some time after the suit had been instituted; the facts that the goods were sold under an order of court and the payment of rent as they became due.
They are not sufficient to defeat or lessen any of plaintiffs’ rights to prosecute his claim against the defendants and maintain an action in 1‘e.m, against the property subject tojtheir lease in the possession of the intervenors, but present good grounds not to change the terms of the indebtedness and to let them remain as stipulated in the lease.
The intervenors furnished bond accepted by the sheriff as good and solvent to produce the property to meet the judgment of the court or pay its amount. This bond represents the goods.
In decreeing recourse upon this bond the obligations remain until payment, and plaintiffs’ right remains unaffected until payment. We do not desire by our ruling to weaken the authority of Christy vs. Casenave, 2 N. S. 451; Raumager vs. Blatmer, 11 R. 170; Ledous vs. Jones, 20 An. 539.
The state of facts in these cases are not in all respect similar to the facts of the case under consideration. The abandonment in the eases just referred to was complete and no bond to secure the claim was on file.
As precedents Reynolds vs. Swain, 13 L. 193, and Prieur vs. Depouilly et al., 8 An. 399, apply.
The terms of payment in these cases remained the same as they were before judgment was pronounced.
In reference to the fee of attorney, to which objection is urged, it having been stipulated in the contract of lease, as one of its conditions ; the difference between the parties justified the proceedings to secure plaintiffs’ rights.
We think the fee-is due.
Tt is therefore ordered and decreed that the judgment appealed from be amended, by allowing execution to issue as decreed in that judgment for the sum actually due at the time the writ of fl. fa, will be applied for, and that for the balance a writ of a fl. fa. to issue from month to month until the judgment is all paid.
• The judgment is also amended by allowing, as in the judgment of the court a qua, interest on the notes due and demandable as to payment and rejecting all demand for interest on the notes not matured.
*799The judgment is also amended by setting aside the order of dismissal of the court a qua, and it is further amended by rejecting intervenor’s demand, without prejudice, however, to their liability and that of their sureties on the forthcoming bond for the restoration to the sheriff of the property seized or for the satisfaction of plaintiffs’ judgment.
After amendment as above the judgment appealed from is affirmed at appellees’ costs.