discented.
The principal argument of the plaintiffs counsel, assumes that the sheriff was bound to give three days notice of the 1 seizure, with a list of the property seized, to the debtor; that the sale could not take place until it had been advertised during thirty days, to be counted from the last of the three days which were to precede the first advertisement. So that the sale could not be legally made till the thirtieth day of August, or thirty-four dajrs after the writ came to the hands of the sheriff.
The counsel of the defendant contends there was no neces. sity for any notice of the seizure, nor of furnishing any list *634of the property seized; that the sheriff was hound to seize as soon as he received the writ, without delay, as soon as he had seized he was bound to advertise, and at the end of thirty days to sell. So that the sale might have legally been made on the 27th of August, or on the thirty-first day after the sheriff received the writ.
The decision of this case depends on the assent which this court may give to either of these propositions.
The writs of execution which our courts are authorised to issue differ from each other according to the nature of the judgments which they are intended to enforce. C. Practice, art. 128.
In the present investigation it will suffice to mention two modes of execution; that by the writ of fieri facias; that by the writ oí seizure and sale.
There are two kinds of writs of seizure and sale; the writ issued by a judge at chambers, on an instrument importing confession of judgment; that issued from a court on a judgment decreeing the seizure and sale of a specific piece of property for the payment of the plaintiff’s demand.
The writ under which the property now claimed, was sold, is a writ of seizure of the latter kind. •
As to the duty of the sheriff, in seizing, giving notice and selling under this writ, our Code of Practice has no specific provision.
The first paragraph of the third section of the sixth chapter of the Code of Practice, details with considerable minuteness the duty of the sheriff, in seizing and giving notice under the writ of fieri facias; and in the next paragraph his duties are treated of in the sale and adjudication of property seized under that writ
The seventh chapter treats with equal detail of the duties of that officer in giving notice and seizing under the first writ of seizure and sale; i. e. that obtained at chambers. As to the mode of selling under this writ, the redactors of the Code have contented themselves with directing the sheriffin selling property under this writ, to follow the rules prescribed for the sale of property under a writ offieri facias.
*635Although the Code has not provided any specific provision for the sheriff in the second writ of seizure and sale, his duty is prescribed to him by the writ. He must seize and sell; but this he must not do arbitraily. He cannot sell by private sale, because every judicial sale is made by auction. Sales by auction cannot well take place without being advertised, nor until after some delay to enable creditors to prepare themselves and attend.
This court has held, that although the law had fixed no period, during which sales by constables are to be advertised, these officers were to be governed by the directions given by law to sheriffs.
First, the sheriff under the writ of seizure and sale, issued by a court, must seize. It is contended that as the debtor under a writ of seizure and sale, obtained at chambers, is entitled to a notice of three days before seizur,e he same delay must precede the seizure in a writ issued on a judgment obtained in the ordinary way. This appears to me a non. sequitur. The Code does not require in the latter case, which has no similarity in this respect, with the former, in which the delay is ordered.
In the administration of justice some delay must necessarily take place. Delay is also for the benefit of both parties, as that during which the property to be sold is to be advertised. Without this the creditor would often fail from obtaining his due, by the sacrifice of property, and the debtor would in almost every case suffer materially. Other delays are for the advantage of the debtor only, as that which we are considering. It enables him if he has good cause at first to suspend, and finally to prevent the seizure or sale of his property.
But unnecessary delays are waste of time, and the law abhors all waste.
A writ of seizure and sale obtained at chambers comes against the property of the debtor like a clap of thunder. Not-so, when the writ is issued to carry a judgment into execution. The debtor has had notice of the creditor’s pretensions, has been summoned and offered the opportunity to contest *636them. The judgment has been pronounced contradictorily with him. His opposition has been overruled and his proper-j.y decreed to be seized and sold to pay his debts. His creditor by a notification of the judgment has warned him that after the lapse of ten days the sheriff would seize.
It appears to me, that as to the seizure, the writ under which the sale took place, bears greater resemblance to the writ of fieri facias, than to the order of seizure and sale obtained at chambers, and that, consequently the provisions regulating a seizure under the fieri facias must govern the sheriff. He must as soon as he receives the writ seize, without any delay. Code of Practice, 643.
It is however, contended, that if the debtor was not entitled to a delay of three days before the seizure, he ought to have had it after-. The Code requiring the sheriff on the execution of a writ of fieri facias, to give notice to the defendant, and to furnish him with a list of the property seized, id. 654; and three day thereafter to advertise the property for sale. It is contended that this delay of three days between the seizure and the advertisement is a necessary one even in the case of a writ of seizure and sale; and the debtor having been deprived of it, his property was not sold with the formalities required by law, and the sale did not divest him of his title. To this it is answered, that the Code does not require this delay in the writ of seizure and sale, obtained at chambers ; that it is perfectly silent as to this delay in the case of a writ of seizure and sale obtained on a judgment, which has a much greater analogy to the other writ of seizure and sale than to the fieri facias. Lastly, that the legislator has avowed ' the reasons which induced him to direct the delay in a seizure on a writ of fieri facias, and has declared they do not exist in the writ of seizure and sale. Id. 646, 648. The debtor has a right to object to the seizure of the whole or any part of the property taken, if he points out other property, which he may spare with less inconvenience, to a sufficient amount. This right must be exercised before the property seized be advertised. Id. 649. This right does not exist as to property especially mortgaged, or on which there is a privilege; and *637it is only as to this kind of property that a writ of seizure and sale may he obtained by a judgment, or at chambers. Id. 648.
I conclude that as this delay of three days is not required by the Code in the writ of seizure and sale: as none of the reasons which influenced the legislator in directing on seizure under a fieri facias, are applicable to the case of a writ of seizure and sale, the sheriff acts correctly when he disregards it in a seizure under the latter writ.
But it is contended that the Code requires the sheriff when he sells property under a writ of seizure and sale, obtained at chambers, to cause the same appraisements to be made, and observe the same delays and formalities as are prescribed for the sale of property seized on execution: id. 745; evidently refering to the paragraph which treats ex professo of the sale and adjudication of property under the writ of fieri facias. It is not in the paragraph thus referred to, but that which treats of the seizure ofproperty, and the notice thereon in the case of a writ of fieri facias, that the delay of three days is directed to take place. Id. 654,655. The Code assimulates proceedings on the writ of seizure and sale to those on the writ of fieri facias merely in regard to the sale.
It is true, in the paragraph which relates to the sale, the advertisement is directed to take place three days after; the advertisement to be made three days after the notice given to the defendant of the property seized. Id. 667. But this delay had been presented and the advertisement-forbidden to be made before the expiration of it. Id. 654,655. The sheriff, in my opinion, was not hound merely to obtain a third day to allow a delay which he was not otherwise authorised to give, but was bound, in the case of the writ of seizure and sale to advertise as soon as he had performed the acts required by him, before the delay of three days in the case of a fieri facias, i. e. the seizure.
It was admitted in argument that the construction which I place on this part of the Code is that which has generally, if not universally prevailed; it is that which has governed the sheriff of this parish ever since the promulgation of the Code.'' If the sale to the defendant be set aside, there is not *638a sa]e un(jer a writ of seizure which can stand the test. The judgment of this court will uplift the flood-gates of litigation, cupidity will he invited to repeated attacks, and the people will feel alarmed and insecure at the precariousness of judicial x ^ sales.
On all the other points made in the case I agree with the majority of the court.
I therefore, think the judgment of the District Court ought to be affirmed.