
    
      DUNN & WIFE vs. VAIL.
    
    Appeal from the court of the third district.
    of *the uS altate9couH c°TOmittedPun’ der color of an aahority, under a process issued out of a court ofthe United States.
    ^'l,e defendant was charged with the wrongful hiking &nd detention of a slave of the wife, and the Pontiff* prayed he might be decreed to return the slave, pay damages for the wrongful taking i * n a » and detention, and be enjoined in the meanwhile _ . from selling or otherwise disposing of the slat e. rT ' . ,
    . , He answered, that as deputy marshal of tne United States, for the Louisiana district, he took the slave, named in the petition, by virtue of an execution issued out of the court of the United States, for that district, against the husband ia whose possession the slave was found. He pleaded to the jurisdiction of the state court, denying its authority and jurisdiction over him, as deputy marshal of die United States, and its power to suspend, arrest, or in any manner interrupt the proceedings of the court from which the execution had issued. Lastly, he denied the slave to be the property of the wife, and averred it to be that of the husband.
    The district court gave judgment that the plea to the jurisdiction be sustained, and the proceedings dismissed, for want of jurisdiction, at the plaintiffs’ costs. They appealed.
    
      By the statement of facts, which was signed by the counsel, it appeared that the only point, acted upon in the court á quo, was the plea to the jurisdiction, and the only pieces of evidence adduced were a commission from the marshal of the United States for the Louisiana district, appointing the defendant his deputy, and a writ of fieri facias, issued out of the district court of the United States for that district, against the husband.
    
      Turner, for the plaintiffs.
    Three questions present themselves for consideration.
    1. Has there been such an injury done to the petitioner, in disturbing her in the enjoyment of her property, as affords grounds of complaint before a court of justice? If so,
    2. Before what court ought that complaint to be made, as regulated by our state laws?
    3. May the court of the United States entertain jurisdiction of suits, similarly situated as this is ? If that court cannot, by means of its limited jurisdiction, afford to the plaintiffs relief, in the same manner as the state court could do, then the state court, of necessity, must have power to relieve, without resorting to that court.
    I. It is a truth, needing no argument, that every person may come before a court with a . . „ „ petition for redress of wrongs.
    Our act of assembly concerning the execution of the judgments of courts, authorizes the clerk to issue a writ of execution, directed to the sheriff of any parish in this state, where the petitioner supposes the defendant may have property, That writ commands the sheriff to demand payment of the debt, and if not paid, to make the same out of the personal estate of the defendant; and in default thereof, then out of the slaves and real estate, by the seizure and sale thereof, after advertising the same for a certain number of days. Jlcts 1803 — 1813, &fe.
    The only authority for making the seizure and the sale is the writ of execution ; and it must be levied on the property of the defendant. It cannot be on that of any other. But should the sheriff actually seize and take away the property of another, it is an unauthorized act, for which he is immediately responsible to the owner, as any other person would be, who should unlawfully seize and carry it away.
    In truth, the sheriff, who levies an execution, acts at his peril; he must take care not to infringe on the rights, or to intermeddle with the property of third persons : for if he does so, he is a trespasser, and as such, answerable to that person. Prevost ¾' wife vs. Heniien, 5 Martin, 221. 4 Bac. Abr. 459. Sellon’s Frac-tice, 550.
    When such an injury has been done, what is the remedy? — It is an action in court to recover the property so unlawfully seized, or the value thereof, with damages for the wrong done. Sel-lon’s Practice. 550. Black. Rep. 832. 3 Wilson’s Rep. 309. But, where the action is for the recovery of the property, it would be fruitless, unless the rongdoer, could be restrained from selling; and disposing of it.
    This consideration justifies the plaintiff in making him the party defendant, and the court in making an order eujoining the sale of the property, until the rights of the party can be heard and decided on. Unless this mode of proceeding can be maintained as legal and correct, the courts afford only an incomplete remedy for the injury. Shall the pi.intiff have a favorite and trusty slave seized and sold for the debt of another, and have no means of preventing it? shall his jewels and his plate, which h has inherited from his ancestors, be seized and sold in an unlawful manner, and he have no means to prevent it?
    Certainly our laws cannot bé so deficient. There is a remedy, and there is a power to prey vent a change of possession, durins: the suit . ,. S concerning the title.
    II. The act of 1809, c. 26, § 1, says the action shall be by petition addressed to the court, which shall state the names of the parties, their place of residence, and the cause of action, and conclude with a prayer. The act of 1814, c. 29, § 1, provides “ that no person shall be sued in any civil action, in any other parish, but that, wherein he, she, or they, shall habitually reside; any law to the contrary notwithstanding,”
    It is, theiefore, a matter of no importance, where the cause of action originated, it must be instituted in the parish, where the defendant resides.
    Executions on judgments may issue to any parish in this state, directed to the sheriff; when, therefore, an execution issues from the court of the district of New-Orleans, to the sheriff of East Baton Rouge, or to the parish of Ouachita, and a contest shall arise between the sheriff of such parish, and a third person, that Is, one who was not a party to the execution, concerning the right of property seized by the sheriff, that matter, if it affords cause of action to such person, must, by the law of 1814, be sued upon in the parish of the residence of the sheriff, which by an article of the constitution, as well as by the civil code, must be the parish whereof he is sheriff. Const, art. 4, § 7- Civ. Code 12, art. 6.
    Be it always understood, that for the wrongful act of the sheriff, inflicting injury to the person or property, the action is between him and the person injured : and the plaintiff, in the execution, is not at all involved in these matters.
    This subject came under examination in the cases of Meunier vs. Duperron, 3 Martin, §85, and Prevost 8£ wife vs. IJennen, 5 Martin, %21.
    But it is a plain principle that he who does the injury, must answer for it, to the person injured.
    Now, the consequence of the doctrine, laid down in the district court, is, that, in the case supposed, of the execution from Orleans to Ouachita, that although both the plaintiff and defendant in this new controversy reside in Ouachita, and the property in contest is also there, that the action for redress of these wrongs must be instituted in Orleans; and the plaintiff and defendant, and the witnesses or the depositions are all to be drawn to litigage, and to prove the case at Orleans, three hundred miles from their homes.
    
      Moreover, if the injured party was to file his petition at Orleans, no process upon it could issue to the parish of Ouachita, to stop the sale, nor to cite the offending party to appear. Because there is no law authorizing it: and because it is inconsistent with our system of courts, and contrary to the express prohibitions of the act of 18(4. The sale, therefore, of the property illegally seized, would be made.
    If all suits must be brought in the parish where the defendant resides, is there any thing in the nature of this case, which renders that court incompetent?
    lleason, justice, and the practice, all conspire to teach us, that questions about the right of property, seized in execution, should be decided in the most summary way, and with the least expense to those concerned.
    By the jurisprudence, as practised in England, and in the United States (unless Louisiana shall have a different rule) the right of property seized by a sheriff is tried by a jury summoned instantes If they find it to be the property of the defendant, he may sell it, and that verdict shall excuse him from damages; the owner or claimant can still have his action for the property, or the value of it. 5 Bacon’s Mr. 1⅛6 ; 1 Sellon’s Practice, 556, y.
    
    
      By the practice in Louisiana, the owner or , . , . . ... • claimant makes a petition to the judge praying restoration of the property, and an injunction or interdiction to the sheriff to desist from the sale until the right is decided upon.
    This is very easy, when the seizure is made in the same parish or district where the execution issued. But will be very difficult, if not impossible, when the seizure is in another district, out of the jurisdiction of the court w hence the execution issued. Unless the question of property can be decided by the judge of the district, in which the seizure is made.
    If the ancient laws of Spain are inconsistent with our acts of assembly, they are not in force here. If they cannot be applied in their practice to our local institutions, they can have no effect here. None of them but such as harmonize with our form of government, such as are applicable to our system of courts, and such as are consistent with the laws enacted by our own legislature, are in force with us or have any obligation upon, or afford a rule of conduct to, the citizens or courts of this state. The Parti-das, if examined accurately, will be found to have no principle inconsistent with tho-e I have advanced, although the Spanish practice may be, and in fact is different in many respects from our own ; a lid so far as respects the main ques-⅛ ⅝ c tion of this case, there is really no difference in principle or practice between the laws of Spain, and those pursued here ; saving;, however, the prohibition against sueiug a defendant, out of the parish of his domicile.
    The Partida 3, 27, 3, has this provision : “That if, in proceeding to execution, any dispute should arise respecting the right of property about to be seized under execution, as if one should claim it as his own, or that it is not the defendant’s : the judge shall take summary cognizance or information of the truth of the fact. And if he finds the opposition well founded, he ought not to seize the property. But he ought to execute the judgment upon other property belonging to the debtor, about which there is no dispute.”
    Who is the ju Ige here spoken of? Is it he who rendered the judgment about to be executed ? It may be so in some cases ; and I suppos» it generally is he. But then I c intend, if it means only him, who rendered the judgment, as to that, the law has no force here ; it forms, at most, only a rule to shew what ought to be done in such a case, before the judge, who by our own system of courts ought to hear the opposition, or claim of right to the property, not “ about to be seized,” but actually seized and caused away and about to be sold by the sheriff.
    I think this would be the interpretation in Spain, in a case like the one now under discussion : and I am persuaded that such should be the practice there, from what appears in the 1st and-6th laws of the same title.
    The first provides “ that judgments shall be put in execution by the judge, who rendered them, if the thing is in the place.” But if it is ¡not in the place, what is to be done? Why the same law proceeds to inform us “ that when it is in another place, the judge of that place shall put it in execution,’or the judge may order some other to do so, as the AlguaziJ, &c.”
    We are, furthermore, informed by the same law, and by the sixth, “ that the property seized is to be put into the possession of the plain? tiff, to hold until the defendant makes payment of the judgment. But if he will not pay it within a reasonable time, the judge shall permit him to make sale of it : and if no one will purchase, whether through fear or partiality, then the judge may pass it to the plaintiff, at such a price as lie may adjudge it to be worth.
    1 bus we find that it is the judge who puts the judgment in execution: whethtr it b® the-who pronounced the judgment, or the judge of the place where the thing is.
    Apply these laws to a case easily supposed. The judge of the first district at Orleans, renders a judgment, which cannot there be executed, because the thing or defendant’s property is at Ouachita, then the judge at Ouachita is to execute that judgment.
    Now the third law of the Partida above quoted, says, « if, in proceeding to execution, any disputes shall arise about the right of property, about to be seized, &c. the judge shall take summary cognizance, &c. of that matter.” What judge is this who is to take summary cognizance, &c. ? Is it he, who is about to seize the property which is disputed, or is it some other ? I hold that the plain meaning of it, as well the propri-et, of the construction, shews it. to be him, who is putting in execution the judgment.
    What is said in Curia Philipica, % S6, n. ¾, is evidently taken from the Partida, because it is quoted.
    The Partidas are the text of the law, and the Curia is a kind of abridgement, or text book, of the law, as well of the Partidas, as of the Recopilation, it.
    Upon comparing them there will be found nothing in the Curia, which in reason, law or propriety, can vary the law of the Partidas, , , , , , J' , , where both books treat of the same matter ; and if there should be any doubt, it will be found principally ip that obscurity, which arises from too much brevity in the Curia, and may be explained by looking into the law, more at large, in the Partidas.
    Having shewn that, as well by own legislative acts, as by the laws of Spain, the matters in controversy in this case, are judiciable in the third district; and whether any other, of some other court, might have alike jurisdiction of the controversy. I think they can form no ground for denying to that court jurisdiction where the plaintiff has made his election to sue there.
    Has that court the power legally to hear the plaintiffs’ ease, and to decide on their rights, or has it'not? This is the question, and I do not find any thing in our laws by which its powers are denied.
    That my construction of the law of the Parti-das is the correct one, will be found by consulting the commentators on the same law in the Curia Philipica (Ilustrada, 2, § 26, n. 2, and 2 Febrero, 3, 2, § 6, n. 359, where it is expressly said that the third opposer shall make his claim before the judge who executes the sentence, and in those cases, where the claim ⅛ made of the property, on the ground that it ⅛ his, and not the defendant’s, it shall not onh be the duty of the judge, to receive the claim, but he must decide on it, although he acts by the requisition of the judge who pronouuced the sentence, because the sentence is not impugned by such claim. But where the opposition-tends to annul the sentence, or to make any alteration in it, then the judge, required to execute the sentence shall receive that opposition and send it to the original judge, for him to adjudicate upon.
    I beg leave to ask a particular attention to these commentators, because they are so plain and full to my purpose, and the reasons so satisfactory that I am persuaded the court will find that the application of the law of the Partidas has been wrongly made the grounds of the decree of the district court.
    Now, as we have no such practice as that in Spain, of the judge executing his own sentence, when it can be done in the place of his juris-distion, and when it cannot be done there, of sending it to be put in execution by the judge of another jurisdiction, we must come at the remedy in the manner, by our law, best adapted to the end.
    If the sheriff had judicial powers, he might stand in the plaice of the Spanish judge, but he has not; his are merely executive. His man- ... date s not from the judge, it is derived from the law, in virtue of his office ; the writ gives authority to him, to seize and sell in such and such, a case.
    In Spain, the seizure is made by the judge, and the property deposited until payment; but, if fiat is not made in dfie time, then the judge makes an order for the sale..
    But here, the sheriff acts independently of the judge ; as soon as final judgmentls rSgpflefed, in a cause, the judge has done with it.
    But the sheriff, like all others, must be subordinate to the court in the district where he resides, and where he acts. It is then to the judge of that district, the third person must apply to have his rights determined ; and in doing this, he does not interfere with the sentence rendered in the cause ; his complaint is of mat-; ters foreign to it: and if his claim is decided in his favor, it has only the effect of restoring to him his rights, and does not in any manner impair those of the plaintiff in execution against the defendant; that judgment is left in full force unaltered, and the execution likewise.
    In Spain the judge stays the seizure — he. suspends the order of sale until the opposition is heard; and when that is decided upon, he either restores the effects- or proceeds with the • • execution oh them, as the case may require. When he returns the property to the claimant, he then proceeds to seize other property, belonging to the defendant, about which there is dispute.
    So in our case, the judge of the district, where the property is seized, ought, upon application, to suspend the sale, until he can decide on the claimant’s rights. But in doing this, he does notvsc;onftict with the jurisdiction of the court, who adjudicated the first cause, neither does he stop the execution of the sentence, nor injoin the execution ; he stops only the sale of that specific property which the sheriff has wrongfully seized. But, after this injunction, the sheriff may proceed to sell other property o# the defendant, and may sell it and thus satisfy the execution.
    III. Has the United States court, from which the execution issued, jurisdiction of the trespass complained of?
    From what has already been shewn, it is plain, the contest is anew one, and does not belong to the cause already adjudicated in the federal court
    Febrero, in the number quoted, 359, express* ly declares, that the right of controversy about , • . ’ f , , , , , the right of property, claimed by- the third person, may be, and might to be, decidéd^ on by the judge, delegated to make execution of the sentence, without transmitting the complaint to the primitive judge, who had adjudicated the cause. Because this new controversy does not import the nullity of the sentence, nor does it tend in any manner to modify it.
    By the common law of England, an action of trespass lies against the sherifffor taking property of a wrong person in levying an execution. 4 Bacon’s Mr. tit. Sheriff, n. +57> 8. Sel-Ion’s practice ñú6. 1 Blackstone’s Com. 345, &c. &c. — Of this there is no doubt.
    An action of trover, for the property so taken, will also lie against the sheriff. — Same books, and others.
    The courts of the United States are governed by these rules and these principles. This is undeniable. 3 Cranch, 337. Case of trespass against a court martial. S Wheaton 1 to 12.
    
    We will now see whether this case can be brought before that court, and if it can, is the plaintiff bound to sue only there ?
    The act.of congress, giving jurisdiction, limits it to those eases, “ where the matter in dispute exceeds in value five hundred dollars, and where the United States are plaintiffs — or an alien is;a parly — or the suit is between a citizen of another state; and this jurisdiction is concurrent with the-state courts. Here we are to observe that the parties are to be citizens of different states, and one of them must be a citizen of the state where the suit is brought, for if they arji^both citizens of the same state, the federal court has no jurisdiction.
    The courts have been very strict on this point, as may be seen by several cases in Crunch, as well as in other reporters of cases. 1 Crunch, 348. % Cranch, 9 — 120, 445. 3 Crunch, 267, ⅝⅛. £fc.
    In the present controversy, all the parties are citizens of this state ; and, therefore, the federal court cannot entertain jurisdiction of that case : therefore, the court of the third district, by the laws of the United States, was the only court in the world, where the suit could be maintained for the recovery of the property : therefore, the cases was properly brought in the third district, and the plea to the jurisdiction ought to have been disallowed.
    
      Dick, for the defendant.
    Understanding that this controversy had been settled by the. parties, no preparation was made for an argument, on ⅜⅛ ,point to which^it IS supposed to give rise. , , . • . JUteis, however, having heard the observations of the counsel for the - plain tiff, 1 deem lio r 7 - apolggv necessary, as I cannot conceive that y|ew, which the most ma ure consideration cqqld give, would be different at all,from that wider presents itsejf.
    .l^wjll not state the case; it is clearly set forth in the record. The attention of the court ⅛ necessarily draw n to the execution on the judgment of the. court oi the United States* tjae petition and answer, and the decree. They present a case, very unlike that which is lajbour-⅜⅜1 byrthe plaintiffs’counsel.
    The only question is, this: .can the state court interfere with the process of a court of the liulted^tales ? In this case, property has been hy .the marshal to satisfy an ¿execution. A third person interposes and says that it is not tjbeiprpperty, of the defendant in the execution, and obtains an injunction from a state court to stay the proceedings, until the property can he fliyqmred into. The couyt, on being made acquainted with the nature of the application, dismisses 5 its own injunction, on the ground of a £B*nt of- jurisdictfoti. Xkfe ^qprepie court is ,®ojy asked to reverse the judgment, and to order ⅜|⅛0 diftriot court to tal^e cogniaapce ui the quos-tiott. The plaintiff’s couhsel contends there :s/' in all this, ho clashing with the powers of in* court' of the Unilfed States — that it does niff concern the suit, for that has advanced as far as the judgment, and is at an end ; that it does not affect the execution, but only lays hold of the’ property seized. What is the order of the state court? It, enjoins proceedings, under an «xe* cution. Now, if an execution has nothing to do with the cause, there is then no interference with the cause, before the court of the üífbecl S’ates : and then it follows, that that court sits merely for the purpose of deciding, in the abstract, that a debt is, or is not dtte, and has nit right noy power to secure to the successful j^ariy the fruits of its judgment.
    Nothing is more important than that afl clash-ins: of jurisdiction between the state courts^ artff those of the United States, should be avoided; Iu the case of Diggs vs. Keith, 4 Cranch, it is said that a court of the United Statés, will not enjoin ’proceedings* of a state court. Justice and comitv require that the state courts should observe the same rule.
    It is at^^pfed to consider this ás á qdestioil of fresp¿SS agáitfst the deputy1 marshal. A*, exantination xif the record Will hot sttck -'⅜⅛⅝* «Oi prepared to say ttíat a* action of trespass cannot be brought, in a state court, against an officer of a court of the United fetates. But,, here, although something about damages be said in the petition, yet the prayer is that the proceedings be stayed on the .execution, and an enquiry gone into as to the right of property. The order of the state judge, granting the injunction, is in compliance, with the prayer, and the effect has been to stop the sale of the property, seized under an execution issued out of a court of the United Slates, and yet we are told that this is no interference with its proceedings.
    
      Turner, in reply.
    I am ignorant of the grounds, on which the defendant’s counsel imagined this cause was settled, and gratified that my argument has placed him so much at his ease.
    Uhave laboured, and I hope the event will shew with success, to present my case to this court as it is made out in the record : a suit for the wrongful taking and detention of my client’s slave. My hope of a final judgment in her favor rests on the belief, that I will be able to %s ablish the fact.
    The defendant has sought to avert the judgment of the district court, by a plea ⅛ gbate-laent, which T* trust this court wfli say w as <⅜*⅛ roheously sustained. If his object was to prevent what he calls an interference with the process of the federal court, the proper cours# would Wve been a motion to dissolve the injunction provisionally obtained ; but this would have required an affidavit that the slave is ‘the property of tire-defendant in the execution, w ludí could not safely be made. The counsel declares himself unprepared to deny oür right of action, at least for damages, in the court in which we brought our suit. Yet the object of the lea was clearly to defeat our attempt to bring thé merits of our case before it.
   Martin, J.

delivered the opinion of the court. It is cleár that the plaintiffs liad a right to sue for the afledged trespass, and that neither tlift defendant’s commission as deputy-marshal, nor the writ of fieri facias, alluded to, can afford him any-protection, if the facts set forth in th@ petition be true.

We do not mean to say, that the injunction obtained, in this canse, can be so enforced as to prevent of delay the execution of the process of the court of the United Stales; but if, under color of*it, the defendant lies committed a trespass on the property of a citizen of his state) tie is, in the opinion of this court (PkRB'ONV. J. . V . dissenting) spaide in her /courts, for he is not suable in thoSe of the United States.

It is, therefore, ordered, adjudged and decreed that the judgment of the district court be annulled, avoided aud reversed, atft* this-court proceeding to give such a judgment as, in its opinion, ought to have been given, in the district court, it ⅛ order*l, adjiulged áínd'decreed that the plea in abatetaent 6é overruled and set aside, and the ca®% remanffmh\with directions to the. district judge to proceed to the trial of it, on the merits : and it is oMé^hiUttiát ⅜⅜ defendant and appellee pay the costs of &fe ap* feeaL ⅝ / ,⅞  