On Rehearing.
NICHOLLS, J.In defendant’s application for a rehearing our attention is directed to the plea of the prescription of one year, which he filed in this court after the transcript was lodged here. We should have noticed it specially. We did not do so, and it is our duty to rectify the error. The judgment which we have rendered in this case recognized the fact that the plaintiff was in the legal possession of the property claimed, and that the defendant was not. His acts in going upon the property, cutting down timber, and removing the same were therefore the acts of a trespasser, and the demand of the plaintiff for damages for the same was one brought upon a cause of action ex delicto, and it was prescribed by one year as to acts committed more than one year prior to the institution of this suit, unless the prescription was interrupted. No issue under the circumstances of the case was raised in the district court as to that prescription, and under article 902 of the Code of Practice this cause should be remanded to the district court for trial upon the issue raised by the exception of the prescription of one year. We find no ground set up in the application for a rehearing, other than that which we have just referred to, which in our opinion would warrant us in granting a rehearing. The relief which we think appellee thus entitled to *215can. be accorded -without the necessity of a rehearing.
For the reasons herein assigned, it is hereby ordered, adjudged, and decreed that so much of the judgment heretofore rendered in this case in favor of the plaintiff against the defendant as adjudged and decreed that “he recover from the defendant the sum of $1,500 for having trespassed upon said land and cut down a large number of trees thereon and hauled away and sold the same,” be, and the same is, hereby annulled, avoided, and reversed, and it is now ordered and decreed that the demand of the plaintiff against the defendant for damages for the cutting down of the trees and hauling the same off and selling them, be, and it is, left open for examination, adjudication, and decision by the district court on a future trial upon the issue and plea of the prescription of one year, and for that purpose and to that extent this cause is hereby ordered to be remanded to the district court for further proceedings. The application for a rehearing is refused, and our judgment remains undisturbed, except as above altered.