delivered the opinion of the court.
This is a suit to recover a slave in possession of the defendant. The plaintiff prays that he may be condemned to surrender him, or in default thereof, within a reasonable time to be paid his value; and for his services, at the rate of one hundred dollars per annum.
The plaintiff shows that he purchased him at a probate sale of the estate of the widow Durand, in 1823, and remained in possession several years, when he was taken out of his possession by the marshal of the United States, for the district of Louisiana. The defendant sets up title under a sale by the marshal, under an execution sued out of the District Court of the United States, to satisfy a judgment recovered by the heirs of Durand, against the representatives of the widow Durand. He exhibits a mortgage given on the slave by the widow Durand in her life time, in favor of the heirs of her deceased husband. No deed by the marshal is exhibited.
The plaintiff contends that a sheriff’s deed, is the only legal evidence of a forced sale. That the defendant cannot make out any title, by exhibiting merely the marshal’s return. On the other side, it is contended that in a suit by the present plaintiff against his vendors in warranty, he had stated in his *283petition, that the slave in question had been taken by the marshal, and in due course of law sold; that this judicial avowal precludes the plaintiff in the present suit. Taking the confession in its utmost latitude, and it amounts to nothing more than a declaration that the marshal, to satisfy a- judgment, not against him but to which he was a stranger, which was as to him, res inter alios acta, his property had been seized and sold. It is not easy to perceive how either, the act of the marshal, or the admission of the plaintiff, could divest the plaintiff of his title. The judgment was notagainst him, nor was the marshal authorised to seize his property. If the marshal’s deed went in evidence, what would it prove? It might serve the defendant as a title on which he might perhaps base a plea of prescription, but surely it would not show the consent of the plaintiff to the sale. Nor does his confession show it; it simply shows a fact which he thought at the time amounted to an eviction, and opened his recourse in warranty.
fiXiSftSon”?opSerfy third.6 h^tesIov, \e kgaiTy7 soM under it, only by pursuing the hy- creatlá”0?/afhl deceased.But it is said that the slave was sold to satisfy an outstanding mortgage, in favor of the heirs of Durand. It is a sufficient answer to this, first, that if the mortgage existed, Joyce was a third possessor, and the property could not legally be sold, without pursuing the hypothecary action; and, secondly, that in point of fact, the mortgage had been _ , _ extinguished by the sale, m pursuance of a judgment of the Court of Probates. It has been settled by this court, that all mortgages created by the deceased, are extinguished a probate sale of the mortgaged property.
Under this view of the case, we should be of opinion that the plaintiff would have been entitled to recover; but, pen-' dente lite, the slave died of the cholera, and the case presents itself in another, and rather novel aspect. The plaintiff contends that he is entitled to recover the value of the slave, and of his services after the inception of the suit, inasmuch as the defendant was in bad faith. He relies as to the value .of the slave, on the 229th article of the Louisiana Code: “If the thing duly received is an immovable property, or a corporeal movable, he who has received it is bound to restore in kind *284jf it remain, or its value if it be destroyed or injured by hi ’ J J J ■ fault; he is even answerable for its loss by fortuitous events, if he received it in bad faith.”
it«emsthatthe Zotísima Code, in whlchuieposscssor was from the first a wrong doer and an usurper, acting with a knowledge of his want of faith. It cannot be said that the purchaser at the marcipatc^wit^tho latter in the origiwithout authority. cipatcd with the nai^trespass^by propertyThis article seems to us to apply to cases in which the possessor was from the first a wrong doer and an usurper, acting with a knowledge of his want of right. It cannot be said that the defendant participated in the original trespass. T «it tit* He received the property from the marshal, and there is no A J ^ evidence that he knew of the title of the plaintiff, before this suit was brought. ~
As our Code does not seem to have provided expressly for a case °f this kind, we are compelled to resort to first princi- ' pies, to natural law and reason. The safest interpretation of natural law, and the best aids of our reason, are those profound thinkers whose works have come down to us, and whose spirit breathes throughout our civil jurisprudence; and although the ancient civil laws have no longer in our tribunals the sanction of legislative authority, we cannot shut our eyes to the light they shed along our path, while following the imperfect clue of a written Code.
The text of the Roman Digest, to which we are referred by the plaintiff’s counsel, establishes the general principle, that after the contestatio litis, all persons, although originally bona fide, become persons in bad faith. The reason given by Ulpian, is, ££ Coepit enim scire rem ad se non pertinentem possidere se is qui interpellalur.” This law relates to a suit for an entire succession, and the edict of the Emperor Adrian, here commented upon, seems to have laid down this principle, that after judgment in his favor, the plaintiff ought to obtain all which he would have been entitled to, if the succession had been surrendered to him at the moment suit was instituted. In commenting on this edict, in law 40, of the same book, Paulus thinks the application of the rule would be too severe. For, says he, how would it be if after the litis contestatio, some slaves had died, or animals had perished? According to the discourse of the Emperor, the possessor would be responsible for their value, since the plaintiff, having found them in the succession, might have *285sold them if the estate had been given up at once on his demand. Proculus thinks this would be justas relates to effects or objects specifically demanded, but Cassius thinks otherwise. In my opinion, continues Paulus, Proculus is right as relates to a possessor in bad faith, and the opinion of Cassius, in relation to a possessor in good faith, is equally well founded; for a possessor in good faith ought not to be responsible for their mortality, nor abandon the defence of his rights through the fear^f such an accident. Paulus again, l. 27, t. I, De rei vindicatione, which is the case before the court, says, “ Quod si litis contestationis tempore possedit cum autem res judicatur sine dolo malo amisit possessionem, absolvendus estpossessor.” 3 Poihier’s Pendats,p. 715.
The possessor ¡iTgood rfithj the destruction of the thing, without fraud or fault,The learned Gregorio Lopez, in commenting on the sixth law, title fourteen of the sixth Partida, which establishes the general principle, in relation to suits for an entire succession, that the possessor in bad faith is responsable for the destruction of the effects, after the contestatio litis though not before, but that the possessor in good faith never is; says, that although after the contestatio litis all possessors stand on the same footing, all equally trespassers, yet this principle relates only to fruits recovered or to be received, but that it is otherwise as to the destruction of the thing, for in that case there is a difference between a possessor in bad faith veré et h principio, and one who becomes so ficté or by fiction of law, after the contestatio litis, that he who was originally in good faith, is not liable for the destruction of the thing without his fraud or fault. This seems to us a sensible and sonable distinction. A possessor when informed by suit, of a better title, may have just reasons for defending his title, with a view to his recourse in warranty. It is a' right which he is not bound to abandon at the first notice. We are, therefore, of opinion, that the defendant is not liable for the value of the slave.
The remaining question is, whether the defendant ought to be condemned to pay for the services of the slave, after the institution of the suit, and until he died? We assume as a principle, that the slave still belonged to the plaintiff, *286though possessed by the defendant. If it had been a female slave, and she had given birth to a child, after the contestatio Mis, the child would, in our opinion, have belonged to the p]aintiff. The defendant had profited by the labor of the slave in dispute, up to the time of his death. On this point we have the express authority of the Roman Digest. Utique autem, etiam mortuo homine, necessaria est sententia propter fractus et partus et stipulationem de evictione. Same title 1.16, and Gaius again in law 20, u nee enim sufficit, corpus ipsum restituí; sed opus est, quod, habiturus foret, si eo tempore quo judicium accipiebatur restitulus illi homo fuisset.”
„ , „„„„„„ Such a posses-the fruto aMrothiagj from tile íhTpropeñy?undetraction. ° ltsThese authorities, which are in fact but deductions from " acknowledged axioms of law, and particularly that which forbids one man to enrich himself at the expense of another, seems to us fully to authorise the court to decree, that the defendant shall pay the value of the services of the slave, from the time this suit was brought until his death. The evidence shows that he lived about six months after the inception of the suit, and that his services were worth about seventy-five dollars per annum.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that the plaintiff recover of the defendant, the sum of thirty-five dollars with costs of both courts.