
    PREVOT & WIFE vs. HENNEN.
    Appeal from thecourt of the fifth district.
    The seizure ofreal estate, on a fi' fa', di- vests the defendant from the legal posses- sion of it. sion of it.
    In the year1814, some person, not connected in the present cause, sued Prevost, the husband, recovered judgment, and obtained execution. The sheriff thereupon seized a house and piece of land, as the property of Prevost, and pro. ceeded to make the appraisement. This being done, and no opposition whatever made to these proceedings, he sold the property seized to the present defendant. Henrietta Borel, wife of Prevot, however, obtained and kept possession of the premises&emdash;in consequence of which the defendant requested the sheriff to put him in possession, who thereupon summoned the posse comitatus, and did actually put him in possession. The house being of no use to the defendant, and the materials, in his estimation, not worth taking away, he caused it to be burnt. Henrietta Borel afterwards claimed the premises as her own private property; brought a petitory action, and recovered it by a judgment of the supreme court. 4 Martin, 506. And on the 18th of March, 1816, about eighteen months after the alledged trespass had been committed, she brought her action for damages, not against the sheriff, but against Hennen, and did in fact get a verdict for $2000. On a mo- tion for a new trial, this verdict was affirmed, and judgment thereupon rendered: he appealed.
    West.District.
    Sept. 1817.
    Workman and Hennen,
    for the defendant. The first circumstance that appears extraordinary in the proceedings in this case, is the enormity of the damages. Two thousand dollars have been awarded as an indemnification for a trespass on a property which was sold for the sum of &333 67.
    The jury, which could give such a verdict, must have been actuated by a spirit very different from that of justice.
    It is equally remarkable, that during the whole of the proceedings, previous to the sale of the property, no claim was interposed, no opposition made by Madame Prevost, or by her husband, in her behalf. When a sheriff seizes property, by mistake or otherwise, which he has no right to take, common sense immediately suggests to the owner to make his claim without delay. If he neglects this obvious precaution, he virtually waves his right as to the injury, trespass or tort, and retains his right to the property only-for, in strictness, there is no tort or injury, unless where there is an intention of injuring. How can a sheriff be considered as a wrong doer, for taking property which he believes he has a right to take, and which the owner suffers him to seize and to appraise, without making any claim, complaint or expostulation?
    
      In England, and in the United States generally, when the sheriff makes an illegal or erroneous seizure of goods, the owner of them, if the sheriff persist in the seizure, has no other remedy but to bring his action of trespass. But in this state, the law has provided an immediate and summary remedy, which is very generally known and very frequently enforced. When property is seized for a debt, a third party who affirms that the property belongs to him, or that he has any right in it, may make opposition to the execution, and the judge shall take cogni- zance of this opposition, in a summary manner. Part. 3. 27. 3.
    The mode of making, and the proceedings in, such opposition, are briefly stated in the Cu- ria Filippica, part. 2, Juico executivo.- part. 26, tercero opositor. From which the following extracts are submitted to the court.
    No. 4. " Esta oposicion se puede, y ha de hacer, y admitir en qualquier tiempo durante sentencia de remate, como sea antes de dada la possession, o hecha la paga.”
    The words of the law, be it remarked, are imperative as well as permissive. The intention of the legislator evidently being to prevent expensive, circuitous and unnecessary law suits. suits.
    
      The 7th number of this section provides for the very case in which Madame Prevot was placed: Aunque la muger, durante el matrimo-nio, no puede pedir su dote y bienes al marido, que sin culpa suga viene en inopia, o pobreza,-empero puedelo pedir en esto caso, quando es executado a pedimento de otro acreedor, y op-ponerse a la execucion, &c. &c.
    The 12th number provides, that these oppositions, when necessary, shall be tried and determined by proofs in the ordinary mode of proceeding.
    What is here quoted, is founded upon laws of the Partidas, and the Recopi1acions, referred to in the book cited. Madame Prevot, having then neglected to use the means, and avail herself of the remedy given and prescribed by the law, what right has she afterwards to complain of an injury or trespass, which her neglect and silence alone occasioned? How was the sheriff to know, legally or officially, that the property in question did not belong to her husband, the defendant in the original suit? Did not the absence of any claim on the part of a third person, tercera opositor, justify him in presuming, that it really was the property of the debtor? Under such circumstances it is contended, that Madame Prevot can be entitled to no damages whatever, from any one, for the seizure of the premises ; and that, having recovered back the property, she has got every thing which she can legally claim. If she had been refused her costs in the action, to which she had recourse for recovering it, that loss would have been only a just penalty, for having preferred a tedious and expensive litigation, to the cheap and summary process, which the law has provided, and which would have secured her from all inconvenience in the first instance.
    This argument is strengthened, when the relation between Madame Prevot and the defendant in the original suit is considered. He, as her husband, was the administrator and protector of her property. He might therefore very naturally be considered in the neighbourhood, as the owner of the estate. He was at least, the apparent owner of it. The sheriff, then was justified in taking it at first, and in proceeding to the sale of it, as long as no legal opposition thereto was made. The silence of the parties up to this stage of the proceedings, gives strong reason to suspect some collusion. They thought perhaps, that by allowiug the seizure and sale to proceed thus far unopposed, the actual property of the debtor would be secure from seizure, and that in the mean time, then he might place it out of his creditors’ reach, by some of those ingenious stratagems, of which debtors of a certain class so well know how to avail themselves.
    How was the sheriff to act, the sale having been thus suffered to proceed, unopposed to its last stage? We maintain, that it was his duty to put the purchaser in the possession of the property; for, at any time previous to the possession being given, the third opposer may make his claim in due form of law. No such claim having been made, it was fairly presumable, that no right to it existed, and this being a case in which it appears that resistance was made, or threatened, it become the sheriffs’ duty “to call for the aid, and command all the people of his country to attend him, and enable him to keep the peace, and execute the process of the court, that was directed to him.” 1 Bl. Com. 362, Dalt. Sher. 5.
    As to the notion entertained by the judge, and stated by him to the jury, that all those who assisted the sheriff in this proceeding, were trespassers, it seems to be quite erroneous. It was the duty of all those able bodied inhabitants of the country, whom the sheriff called to his aid, to obey his summons. The statute of 1805, for establishing the county courts, went so far as to declare, that every person, so called, by any sheriff, who shall refuse to render such assistance, may be punished by fine, at the discretion of the court, not exceeding $25. 1. Orl. Laws 184," And it would have been a most absurd anomaly in our jurisprudence, if a man could be held liable as a trespasser, for doing that which by law he was bound to do, and for refusing to do which, he would he subject to a legal penalty. The provision just quoted of the county court act, has, it is true, been repealed ; unintentionally or in advertenly, as we apprehend for the duties of the sheriff continue the same as before. But though the specific penalty be in consequence abolished, we contend that the sheriff's authority, to call for the aid of the posse comitatus, still remains in full force. It is still made the duty of the sheriff of each parish "to execute all judgments and orders of the district court &c,-and to discharge all the duties which were incumbent on the sheriff of the parish, and su- perior court." (see act to organize the supreme court, s. 23.) It is enacted in the 16th sect. of the same statute, that the proceedings of the district courts, shall he governed by the acts of the territorial legislature, regulating the proceedings of the late supreme (superior) court court of the territory of Orleans. Now, by the 14th and subsequent sections of the act, regulating the practice of the said superior court, Orl. Laws, 1. 236, the sheriff's duties in making seizures and sales, are the same, and prescribed nearly in the same words, as they were under the county court act. His powers, therefore, so far as they are requisite for the execution of those duties, must continue-for it is a well known, undoubted principle of law, that whenever any duty is imposed, or any authority given, the means necessary to the performance of the one, or the execution of the other, are impliedly, if not expressly, accorded. What these means are, in cases like that under consideration, must be found in that system of jurisprudence, conformably to which the office of sheriff was created. Under the free system of the common law, the sheriff would naturally have recourse for aid to the good people of his county, in the same manner as the Spanish alguazil mayor would demand assistance from the military power. The office of sheriff is provided for, and the mode of appointment to it regulated by the constitution of this state-whence it may be inferred, that the nature, the duties and power of that office were generally recognized and understood as they are, and always have been, from similar provisions in the constitutions of several of the other states of the union; that is, according to the principles and usages of the common law. Repeated adjudications of the supreme courts of Massachusetts and Connecticut authorize this presumption. Backus' Sheriff Adv.
    With the kgality of the process, or proceeding of the sheriff in such a case as the present, the posse comitatus have nothing to do. It is quite enough for them to know that he is the sheriff, and that what he is doing is apparently just: otherwise who would ever venture to obey the sheriff, when called upon to execute the law ? The following authorities on this point go very far beyond what we require:"If J. S. be compelled by J. N. to commit a trespass, the latter only is liable-for no person can be guilty of a trespass, unless he act voluntarily." 6 Bac. Ab. 589. "If a stranger have officiously assisted a sheriff or his officer in the execution of a writ of fi' fa', which issued upon a regular judgment, he is not liable to an action of trespass-for it is not only lawful, but it is the duty of every man to assist in the execution of such a writ." 6 Bac. Ab. 590.
    These considerations would serve to exonerate the appellant and protect him against this action, if it were even in proof that he had personally assisted the sheriff, as one of the posse comitatus, or even as a stranger. But the statement of facts does not go that length. It is there declared that the defendant was asked to join the posse-but he objected to going with them, giving as his reason that, as he was the purchaser, it would be improper in him to do so.
    Much stress appears to be laid by the judge below, in the bill of exceptions, on the circumstance that the sheriff put Hennen into possession of the premises-which, it appears from the said bill of exceptions, he had before seized and sold to him, without any warrant or au thority, save only the writ of fi’ fa' aforesaid. And what other authority or warrant, we ask, was requisite? In fact, our laws have provided no other. That writ enables the sheriff to seize the property-and having so seized, and being in lawful possession of it, he sells it and delivers it up to the purchaser. What need of a writ of seizure, or of possession, when the sheriff himself is already in possession of the property? This throws a new light on the affair, and clears up all difficulties. It was Madame Prevot who was the transgressor in this case. She it seems, obtained possession, by some means or other, of that property, which the sheriff had seized and sold, as the record itself states-and it was only in consequence of this unlawful possession acquired by her, that the sheriff was obliged to have recourse to legal violence to eject her from the premises. Had she, when the property was first seized, previous to the sale, made the legal opposition of a third party, she would of course have recovered the possession. But, having neglected to do so, she was to be considered an intruder and trespasser.
    The sheriff having sold the property, as the statate directs, made the tradition and delivery of it in the manner prescribed by law. Tradition, or delivery of immovables, is made by the seller, when he leaves to the purchaser the possession of the same, by dispossessing himself, &c. or by putting the buyer on the premises. Civ. Code, 851, art. 28.
    Hitherto our argument goes to the complete exculpation of all the parties concerned in this supposed trespass of the sheriff as well as the defendant. But, whatever may be the liability of the former in this transaction, it is clear, beyond all doubt, that the latter must be regarded as a peaceable, legal, bona fide possessor. His case comes exactly within the definition of the bona fide possessor, as given by our statute. The possessor, in good faith, is he who is, in fact, the master of the thing which he possesses, or who has a just cause to believe that he is so, although it may happen that he is not; as it happens to him who buys a thing which he thinks belongs to the seller, and which yet he longs to another. Civ. Code, 478, art. 21.
    The sale of the property by an officer authorized by the state to make such sales, was quite enough to justify the defendant in believing that the title was a good one-that the property did in fact belong to the debtor, and, by operation of law, to the sheriff who had seized and sold it. If any thing more was necessary to confirm him in this belief, it would be found abundantly in the absence of all legal opposition to the sale. Such a possession as this would serve as a foundation for the prescription of ten or twenty years.
    It is, therefore, sufficient to defeat this action of trespass, or any other action, founded on a supposed tort or injury. In such cases, the maxim of our law is, that "good faith is always presumed, and that it is for him who alledges bad faith to prove it.” Civ. Code, 489, art. 71.
    
      Bonoe fidei emptor (says the Roman law) esse videtur qui ignoravit rem alienam esse, 
      aut putavit eum qui rendidit, jus vendendi ha bere. ff. de verb. significatione.
    Con buena fe, (says the Spanish legislator) recibe el que succede a otro, o' cree que el que le entrega la cosa tiene potestad de entregarla, &c. Part. 7, 33, 9 Compendio por Perez, 44.
    But, if the seizure made by the sheriff, were wholly illegal and without any colour of justice, still this action could not be maintianed against the defendant. The sheriff alone would be liable to it. On this point, the authorities are very full and decisive. Celui qui a été depos-sedé par violence, n'est pas fondé a exercer cette action de reintegrande, contre celui qu'il trouve en possession de la chose dont il a ete depossedé par violence, si ce possesseur n'y a qucune part." Poth. Poss. n. 122.
    Cum a te vi dejectus sim, si Titius eandem rem possidere coeperit, non possum cum alio quam tecum interdicto experiri. If you have dispossessed me by violence, and if another, (Titius) have began to possess the same pro- perty, I cannot obtain the same interdict unde vi, except against you alone. ff. 43, 16, 7.
    The interdict unde vi is here spoken of: Istud interdictum unde vi non datur contra par-ticularem successorem; unde si ille qui commisit violentiam, vendidit vel donavit alteri illam illam rem, vel quovis alio titulo oneroso, vel lucrativo, per contractum inter vivos, vel per ultimam vo-luntatem, alioenavit, non potent primus possessor expulsus agere hoc interdicto contra illum tertium in particularemn successorem, sed tantum contra expulsorem qiu violentiam commisit, licet rem ipsam non possideat. Gomez. Comment. in leg. 45, Tauri, n. 186. Cujus ratio est, (he adds) quia regulariter interdicta sunt remedia personalia. ff. 43, 1.
    The plaintiff having brought her action of trespass, in the common law form, it may be proper to shew, that the principles of that system of jurisprudence, are as little favorable to her claim, as those of the Roman or Spanish laws. To be able to maintain an action of es-pass, says Blackstone, 3 Com. 210; one must have a property (either absolute or temporary) in the soil, and actual possession by entry.
    If the sheriff, or a stranger illegally take the goods of another in execution, and sell and deliver them to a third person, trespass cannot be supported against the latter, because they came to him without fault on his part. 1 Chitty's pleading, 170. The gist of this action is the injury to the possession; and unless at the time the injury was committed, the plaintiff was in ac- tual possession, trespass cannot be supported. Idem. 175.
    There is a material distinction between personal and real property, as to the right of the owner. In the first case we have seen, that the general property draws to it the possession, sufficient to enable the owner to support trespass, though he has never been in possession; but in the case of land and other real property, there is no such constructive possession: and unless the plaintiff had the actual possession, at the time when the injury was committed, he cannot support this action." Idem, 176.
    "Thus, before entry and actual possession, a person cannot maintain trespass, though he hath the freehold in law, &c. But a disseisee may have it against a disseisor, for the disseision itself, because he was then in possession; but not for an injury after disseisin, until he hath gained possession by re-entry," &c. Idem, 477.
    There must be a possesion in fact, of the real property to which an injury is done, in order to entitle a party to maintain trespass, quare clausum fregit." 6 Wilson's Bac. 566. 1 John. Rep. 511. 9 John. Rep. 64.
    These authorities, which might he multiplied without end, 6 Bac. Abr. 593, 3 Caines, 261, Buller's, N. P. 87, 1 Lord Raym., 692, 2 Salk. 639, Co. Litt. 257, 13 Coke, 500, 2 Lord Raym, 975, 1 Leon. 302, 319, 1 Gould. Esp. N. P. part. 2. 266, 9 John. Rep. 6t, &c. &c. all prove that, if Madame Prevot had an action of tress pass, it was against the sheriff, and not against the defendant. But, setting aside the name, and particular form of the action, his substantial and irrefragable defence, in law and is natural equity, is that, as he entered into the possession of the property in perfect good faith, having nothing whatever to do with the original suit, he cannot be liable to any manner of suit or prosecution as a wrongdoer.
    There is yet another legal defence, of which he can avail himself, and which, independent of all others, would be sufficient to defeat this action, now and forever, as against the defendant and afl other persons. It is the plea of prescription-a plea or exception which our law permits to be offered to every stage of a cause, even on the appeal. Code Civ. 483, art. 36. Such is the Roman, Spanish and French law: Prescriptionem in peremptoriam, quam ante con. testare sufficit, omissam priusquam sententia feratur, objicere quandoque licet. The peremn- tory exception, which might be well pleaded previos to the contestation of suit, may, though it should have been then omitted, be afterwards opposed, at any time before the sentence or decision of the cause is given. Cod. 8, 36, 5.
    Cum nundum finitam sententiam, sed dilatani allegatis; non est dubium omnes integras de-fensiones vobis esse.
    When the cause has not been decided by a final sentence, but continued, there is no doubt but that all kinds of defence remain to you in their integrity. Cod. 8, 36, 4.
    Il est de la nature de l'exception peremp-toire, de pouvoir être opposée en tout ètat de cause ; et telle est la prescription. 8 Droit Romain de Le Clerq, 63.
    On ne donte pas que la prescription ne puisse etre proposée en tout ètat de cause. C'ést une exception peremptoire, et cela dit tout. Aussi trourons nous dans le Journal du Palais de Toulouse, 2 tom. 552, deux arrets de cette cour qui jugent que le possesseur est tenu a prouver la possession du tems legitime pour la prescription, quoiqu'il ait commence a se de-fendre contre l'ancien proprietaire, qu'il ait d'á-bord pretendu simplement que la chose lui ap-partenait independamment de la prescription, et sans l'avoir proposêe au commencement de-vinstance, 9 Merlin, 489. See also 8 Le Clerq. 
      Droit Remain, 63, Cod. 8, 36, 8, 2 Domat, 236, F. Ed.
    
    
      The peiod of prescribing against this action remains to be shewn.
    The wrong complained of by the plaintiffs, is called, in our technical law language, an injury. This word includes not only every species of libel, slander and calumny, but all acts of violence for which damages may be recovered in a civil action. It comprises all those torts which the common law designates by the names assault, battery and trespass, vi & armis. Ge-neraliter injuria dicitur omne, quod non jure fit. Inst. 4, 4, pro.
    
    
      Injuria ex eo dicta est, quod non jure fiat; omne enim quod non jure fit, injuria fieri dici-tur. 1 Dict. Dr. Rom. 395.
    
      Injuria autem committitur, non solum cum quis pugno pulsatus, aut fustibus coesus, vel etiam verberatus erit; sed it si cum convitium factum fuerit; sive cujus bona, quasi debitoris, qui nihil deberet, possessa fuerint, ab eo qui in-telligebut nihil eum sibi debere. Inst. 4, 4, 1,
    An injury is committed, not only by beating, scourging or whipping, but also by using slanderous language; or by seizing the goods of another, as if he were a debtor, when the per
      son seizing them knew that nothing was due to him. Inst. 4, 4, 1.
    
    
      The punishment of an injury was by retaliation, according to the law of the twelve tables, when a limb was broken ; but, in lighter cases, the punishment was pecuniary. Afterwards, the praetors allowed the parties injured to lay their damages at a certain sum, which might serve as a guide to the judge in estimating them accord ing to his discretion. And this was the mode universally resorted to when the civil action of injury was brought. Inst. 4, 4, 7. This action corresponds, in the present case, with the common law action of trespass vi & armis, as the action of trespass on the case corresponds with many of the actions given by the Aquilian law. But the right to bring the former (the actios of injury) is limited to one year. Hoec actio dissimulatione aboletar; & ideo, si quis injuriam dereliquerit, hue est. statim passus ad animum suum nori revocaverit, postea expoenitentia remissam injuriam non poterit recolere. Inst. 4, 4, 12. Injuri rum actio annuo tem-pore proescripta sit. Cod. 5.
    This provision is adopted by the Spanish law. Hasta un ano puede todo ome demandar emienda de la deshonra, o’ del tuerto que re-cibio; e si un ano passasse desde el dia que le fuesse fecha la deshonra, que non demandasse en juizìo emienda dela, de alli adelante non la podria fazer: porque pode ome asmar que se non tuvo por deshonrado pues que tanto tiempo se calló, quo non fizo ende querella en juyzio; ó que perdonó ó acquel quo gela fizó. Part. 7, 9, 22.
    During the period of a year, every man may demand compensation or satisfaction for the in- jury or wrong which he has received. But if a year have passed from the day when the in- jury was done to him, without his having demanded, judilicially, satisfaction therefore, from thenceforth he may not make such demand; for it may be considered that a man does not hold himself to be injured, who has been so long si-lent, and has made no complaint thereof in jus- tice; or that he has forgiven the person who lia- done him the injury.
    Gregorio Lopez, in hisglossary on this law, notices the opinion of some doctors, who main- tained that a man was bound conscientiously to make reparation for injuries committed by him, even though the injured person should not bring an action within the year-and that. if he fail- ed to make such reparation, he was liable to be excommunicated. But the best casuists, it see as, decided, quod per lapsum anni est sublata actio injurtarum, et obligatio cicili~ nat~n'~olis adeo quod tacen~do per annum, videti~r injuriatus remisisse omneni injuriain.
    Our statute prescribes the same period for the action of one who has been disturbed in his possession. He, who pretends to have been in~ terrupted in his possession, ought to make his demand or complain thereof within a year, to be reckoned from the day of his being turned out of possession. For, if he leaves his adversary in possession for the space of a year, lie has lost his own posse~siun, ~whatever apparent right he may have had to it: but lie retains his attion for the property. Code Civ. 481, art. 27~
    L'action de reintegrande, torisrsqueile estpour~ su~vie au civil, doit, de mérne qi~e La coinplainte. étre intentée thins l'année, laquelle se coinpte dzt jour que La violence a cessé et que le spoli~ a étO en pouvoi~r de l'intent~r. Cela est con~ form~ aux principes du droit rornain. Dig. 43, t. tt3. Si donc on a laissé passer l'année sans iotenfer cette action ii resuite de ce laps un~ fin de non recevoir cor~tre cette action q~on von~ droit intenter aprés Vannée. Pothier. L'action n complaints est egalement annale. 9 Merlon, 550
    The lapse of time, then would have convert, ed the appellant's possession of the premises, 
      had it been even at first obtained by violence on his part, into a legal possession; and therefore the action grounded on that violence could no longer be maintained.
    
    If it be attempted to distinguish the action for recovering possession, from the action of injury for the disseisin, then we rely on the law already quoted of Partidas. A law not repealed, altered or modified,-as respects civil suits, by any statute of this state. Our civil code is silent on this particular subject: it regulates the periods of prescription in various cases, leaving the others as before its promulgation. The 65 art. p. 486, provides, that after thirty years, all actions, either personal or real are prescribed against. But this provision is evidently intended to apply to actions only, for which, the period of prescription is not otherwise fixed. In other parts of the same code, different times of prescription are specified. In an antecedent part of that code, sec. 2, ch. 5, of the title of sale, it is enacted (367, art. 115) that, "l'action pour se faire restituer pour lesion d'outre moitie, doit etre exercée dans les quatre ans." This provision, it is well known, has not been affected by the subsequent clause, declaring that all actions are prescribed against after 30 years. But the law of the Partidas stands in the same degree of authority, as if it had been ordained on the day before the civil code was promulgated, or, as if it were found in that code itself, immediately preceding the article of the thirty years prescription. And it; has been already determined, after many solemn arguments, that the provisions of that code or digest, are to be taken, and construed along with the previously existing laws on the same subjects, as statutes made in pari materia, the whole to remain in force, if not incompatible with each other. In an action for slander, the prescription, here contended for, was admitted by the superior court, of the late Territory of Orleans;-subsequently to the promulgation of the civil code. In the action now before the court, the term of prescription is precisely the same, viz. one year from the day when the injury, or trespass, was committed. If this prescription were considered repealed, as incompatible with the above mentioned 65th art. of the civ. code, p. 486, so must every other prescription, provided for by the preceding titles of that code, or by any a antecedent law ; a construction too absurd and mischievous, to be for a moment supported.
    Now it will appear, from a reference to the record, that the disseisin or forcible entry com- plained of, took place some time in the year 1814, and that the present action of injury, to recover compensation for the alledged wrong, was brought on the 18th day of March, in the year 1816, leaving an interval between the sup- posed injurious act, and the complaint, or at least fourteen months and seventeen days.- And thus, by the plea of prescription, this ac- tion is overthrown.
    Brent for the plaintiffs.
    I will first reply to the plea of prescription set up by the defendant, and then she , that the merits of the case are with us.
    This plea of prescription, was not made in the court below, and cannot be made now.
    All pleas or, in the technical language of the civil law, exceptions must be set forth by the party, wishing to nail himself of them, and they cannot be supplied by the court. ff 44, tit. 1, & 1, 2 and 3. 8 Le Clerq, Droit Romain 63. No new pleadings can be made, nor new evidence given in this court, which is to judge according to the record, and give that judgment which the court below should have given. But it is clear that the court below could not have supplied this exception; and, therefore, that it cannot be noticed here. See act of 1813.
    
      On the merits, the defendant must be equally unsuccessful. From the statement of facts, it appears the defendant requested the sheriff to put him in possestion of the premises which he had previously purchased. Now the sheriff, agreeably to the duties of his office, as known at common law, is not bound to deliver to the ven- dee possession of real estate sold under a fi' fa'. 1 Haywood, 495. This principle is uncontrovertible. We can go to no other systsm than the common law to learn the duties and powers of the sheriff; the civil law can give us no light on the subject; for such office was unknown to it. If then the sheriff was not bound to deliver possession of the real estate sold, and be undertook to do it at the request of the vendee, both were trspassers and jointly and severally responsible in damages to the plaintiffs. The common law doctrine is well stated in 6 Wilson's Bac. Abridg. 589. Every party to a trespass is liable to an action of trespass; for there can be no accessary in trespass." So "if A command or request B to take the goods of C. and B does it, this action lies as well against A as against B And, "if J. S. agree to a trespass which has been committed by J. N. for his benefit, this action lies against J. S. although it was not done in obedience to his command, or at his request." or at his request" "If divers persons have been guilty of a trespass, the party injured may bring an action of trespass against them all, or against any one or more of them." These principles might be proved by reference to every elementary book as well as to innumerable adjudged cases. Such also is the doctrine of the civil law. “Je suis cense avoir fait moi-meme ce que quelqu'un a fait en mon nom, quoique sans aucun ordre. lors- que j'j ai donné de puis mon approbation.” Po- thier. Traite de possession, no. 23, L. 152, § 2. ff, de reg. jur. l. 1, & 14, ff. de vi & vi arm.
    The evidence, exhibited in the statement of facts, shews that the defendant, not only con- sented to the trespass after it was done, by tak- ing possession of the estate; but that he re- quested to be put in possession thereof.-It was committed not only at his request, but for his benefit; thus bringing the case directly within the authority cited.
    The charge of the jndge, to the jury, was in conformity with these principles; and the jury, the sole judge of the damages, have fixed the amount for which the plaintiffs should have the judgment of this court.
   Derbigny, J. delivered

delivered the opinion of the court. The first question which presents itself itself here is, whether any trespass has been committed-if decided in the affirmative, the second will be, whether, from the conduct of the defendant, he ought to be considered as one of the trespassers, and, as such, liable to indemnify the plaintiffs.

To come to a clear understanding of the first question, the previous inquiry must be, who was in possession of the plantation, when the sheriff came there, with the posse comitatus? The plaintiff, to be sure, was in the actual occupation of the house; but we are not to conclude from that circumstance, that she was the possessor. The plantation had been previously seized. What is the effect of a legal seizure? Surely it is to place the property under the custody of the law, until it is disposed of according to law. Formerly, under the government of Spain, the property seized, whether real or personal, was deposited in the hands of some person of solvent fortune: "Los bienes executados, ora sean muebles o raices, se han de se-questrar, inventoriar y depositar en persona a-bonada, sin llevarlos nin tenerlos en su poder el alguacil." Curia Philipica, tit. Execucion no. 19. This has been altered into a deposit into the hands of the sheriff himself: "after such seizure, the sheriff shall keep the property so seized at his risk &c. (see 172 and 242, of the first volume of the acts of our legislature.) The moment then, that a seizure is regularly made, (and we are bound to presume that this is, nothing being shewn to the contrary) the thing ceases to be possessed, by the person in we use possession it was found, and is placed under the custody of the sheriff. A practice, introduced for the mutual convenience of the party and of the sheriff, is to leave the possessor on the property seized; but that does not change the situation of the thing; the occupier is there, by permission of the sheriff, and is supposed to keep the property for him.

In this case, however, it is said, that the property seized continued to be legally possessed by the plaintiff, because her husband, the debtor against whom the execution went, being not the owner of the premises, the seizure was illegal. We do not think that this circumstance made any difference, as to the actual possession of the thing by the sheriff. The plaintiff might indeed have caused that possession to cease, on making known that the property was hers; but, so long as she thought fit, to acquiesce by her silence in the possession of the sheriff, that possession continued. It had not yet ceased, when the sheriff transferred it to the appellant; that transfer therefore cannot be viewed as a trespass. If a trespass was committed, it took place when the sheriff seized the property, and the sheriff alone can be answerable for it.

Should we admit, that the possession of the plantation was retained by the plaintiff, notwithstanding the seizure, and that the forcible entry of the sheriff on it was a trespass, the claim of the plaintiff would still be unsupported by the evidence. The appellant did not aid the sheriff in taking possession by force; he simply received from him, the transfer of that possession, after it had been taken. He was a bona fide purchaser, and became a bona fide possessor. Far from being answerable in dam- ages towards the plaintiff, he had a right to enjoy whatever the plantation produced, with or without culture, and was not even liable for the loss of the property. Code Civ. 480 art. 30.

From this view of the subject, it becomes un- necessary to examine the other questions, which were raised in this case.

It is, therefore, ordered, adjudged and de- creed, that the judgment of the district court be annulled, avoided and reversed; and that judg- ment be entered for the defendant with costs. costs.  