The judgment of the court was pronounced by
Eustis, C. J.The plaintiff, alleging himself to be the owner and in possession of a valuable plantation in the parish of Plaquemines, with the slaves thereunto belonging, complains that Grecnberry Dorsey has slandered his title by giving out to divers persons that he had an interest in said plantation and slaves, or that he had a right to a portion, or was part owner thereof. It is alleged that Dorsey had no right, title or interest in any portion of the plantation or slaves, and that the declarations thus made by said Dorsey were made maliciously, and for the purpose of disturbing the petitioner’s right of property and preventing his disposing of the same. The prayer of the petitioner is for the payment of $5,000, damages alleged to have been suffered by the acts of the defendant, and that the defendant be decreed to produce his titles, if any he have, in support of his claims to the said plantation and slaves, and to prosecute suit thereon to final judgment, and, in default thereof, that he be forever enjoined from setting up said claims or bringing an action thereon, and that the plaintiff be decreed to be the sole owner 'of the plantation and slaves, free from all claim on the part of said Dorsey. It concludes with asking for general relief. This petition was filed on the 24th February, 1846.
The defendant pleaded the general issue, and denied expressly that he had ever slandered the plaintiff’s title, but alleged that he had only taken measures to exercise his legal rights and claims to said property, as well in his individual ■capacity, as in,that of tutor of his minor children, and that he was about to institute legal proceedings against the plaintiff for the purpose of establishing his rights. He prayed to be hence dismissed, and also for general relief.
The cause was at issue on the 9th of March, 1846, and judgment was rendered on the 4th of March, 1847. The court, considering that the plaintiff had *93a right to have the doubts created by the defendant’s acts respecting his title to the property in question cleared up, gave judgment for the plaintiff, and decreed that the defendant be condemned, within one month from the date of the judgment, to institute the suit stated in his answer, or in default thereof that he be forever enjoined from making any claim to said property, and that the defendant pay costs.
It appears that, long after the term thus fixed for the institution of his suit, Dorsey filed his bill in chancery against Packwood, in the Circuit Court of the United States for this district, for the recovery of his interest in the plantation and slaves, and that Packwood has pleaded this judgment in bar of Dorsey’s right of action.
It becomes, therefore, necessary to decide on the validity of this judgment. This is an action of jactitation or slander of title. Actions of this sort have several times been recognized by the Supreme Court, since the repeal of the Spanish laws by the statute of 1828, and their utility in quieting titles and preventing the disturbance of owners by the putting forth unfounded claims to their property, we believe is unquestionable. In these cases the question has never been raised as to the power of the court to fix a term within which the defendant is compelled to set forth his title or institute his suit, under the penally of being forever after estopped from asserting his claims, the court having tried and decided the issue of title tendered by the defendants. It is to this part of the judgment of the District Court that the argument of counsel has, on both sides, been directed. ,,
It appears from the forms contained in the Spanish books of practice, referred to by the counsel for the plaintiff, that in Spain judges were in the habit of fixing a term within which a person setting up a title to property in the possession of another was bound to institute his suit, under the penalty of perpetual silence. Whether such a judgment was final in all cases, or whether there was any relief afforded against it, we do not find stated in the works referred to by counsel. It appears that these judgments rested for tneir legality upon no legislative sanction, nor any recognized principle of the civil law, but entirely on an extension of a law of the Code of Justinian known as the law Diffamari. By this law, whoever defamed the condition of a person born free, could be compelled to exhibit his proofs and make them good in a court of justice, and in default thereof be condemned to perpetual silence in relation to the slander. The dignity which the law attached to the condition of a roman citizen, and the protection which it threw over the personal rights of all those subject to its dominion, explain at once the purpose and policy of this salutary provision. It was in derogation of the general principle Invitus agere el acensare nemo cogalur, and was enacted in the interest of public order, and for the maintenance of public peace among the different .classes and races of the empire. An action was also given by a rescript of the Emperor Diocletian to a tutor, in case his former pupil had accused him of retaining the funds of the latter, in order to compel the pupil to institute his suit for an account.
Merlin says that the greater portion of the interpreters of this law, Diffamari, have extended it to slanders of the title of property, and to cases in which a party publicly claimed to be a creditor of another, and that this interpretation is in conformity with the spirit of the text. It must be admitted, however, he adds, that, “learned jurisconsults, such as President Favre, Henrys and Duperrier, have resisted with great force the extension of this *94law Diffamari.” In the text of the Spanish law, the singleness of the law Diffamari appears to have been adhered to, and the law not to have been extended beyond cases in which the character of the person, the status, or condition of the party, is assailed.
No person can be compelled against his will to sue another, unless in certain particular cases wherein the judge may by law oblige him to do it; as where a man publicly says another is his slave, or defames him in the presence of other persons. In these and other like cases, he who is defamed may petition the judge to oblige the defamer to bring a suit nnd prove what he said, or to retract or to make such reparation as the judge shall deem just. Partida 3, tit. 2, law 46. Gregorio Lopez in his commentary extends this law to disturbances of titles to property by slander.
This action being recognized as a part of our jurisprudence, are we bound, in the exercise of it, to all the incidents to which under the Spanish practice it was subjected? The repeal of the Spanish laws by the act of 1828 is an answer to this question. At the same time that we are at liberty to adopt any rule in furtherance of the object of the action, and not contrary to our own Code of Practice, which the experience of courts of the civil law has proved to be necessary, we cannot recognize a proceeding which has never been acted upon in our courts, and which is in direct conflict with principles we consider elementary. The law itself fixes the limitation within which actions can be brought. The power which is assumed in the decree appealed from .of fixing the term of one month within which Dorsey is compelled to bring his suit, under the penality of losing his right of action, is in direct conflict with the law of prescription.
We do not find that this practice of depriving the party of his right of action in default of bringing suit, which the Spanish courts impose, is followed in other countries in which the civil law prevails.
Merlin himself puts the question, whether the defamer after being condemned to perpeíuaLsi'lenceíin consequence of not having instituted his suit within the term fixed by the judge, can have relief against this sentence, and be permitted afterwards to assert his rights- Wassenaer. Sola and VoSt contend that he can, provided his demand in restitution be founded on aprobable cause, as on his ignorance, at the time of being condemned, of the existence of certain proofs and facts material to establish the justice of his claims. But in this opinion Merlin does not concur, and thinks it is founded on a practice peculiar to courts in Germany, and that the restitution in a case like this ought to be confined to those causes which authorize the “requite civile.”
Müller, in his Promptuarium, tit Provocatio ex lege Diffamari, s. 17, says that, if the defendant confesses the slander, and avers himself willing to institute ’his suit, *duplez^ terminus saxonicus ei coneedi solet, sub posná perpetui silentii.
VoSt states that one citation is not sufficient to authorize the decree of perpetual silence. Two at least, and sometimes three or four are considered necessary, before the party is condemned on his default. Vogt ad Pandectas, lib. 5, tit. 1, s. 24. These discrepancies in the application of this extraordinary remedy result undoubtedly from the different modes of practice which prevail in different countries: but their existence shows the reluctance of courts in *95concluding a party for ever by fixing absolutely a term during which only his rights can be exercised, and a disposition to avoid such a result.
In the jurisprudence of France, we have found no case in which a decree of this kind has been rendered against a party.
It seems to us that it is impossible to cany out the law Diffamari in its extension to all cases as maintained by the Spanish writers, and the safest rule for us is to adhere to its original intendment and policy. In an action for the slander of title to property we see no reason why a judgment shounld not be rendered, ordering the defendent to institute his suit in order to establish his asserted pretensions to the property which he may set up. This judgment will stand to the plaintiff as a perpetual default of the defendant. But we know of no authority on the part of the court to fix any term, within which the party can be compelled to'assert his rights under the penalty of being deprived of them. There are cases in which we have allowed the debtor to become the actor in a suit, but we do not consider that those cases affect the question decided in this.
The action for damages to which every one who injures another in his person or estate is liable, will we believe continue to be, as it has been, a sufficient protection for property against slanderers of title. • No damages have been given by the judgment in this case, and none are asked in this court.
We have been referred by counsel to the proceedings in courts of Chancery on bills of peace, but we find nothing in them which supports the part of the decree to which our inquiries have been directed.
The judgment of the District Court so far as it condemns the defendant within one month from date to institute his suit against the plaintiff, or in default thereof to be forever enjoined from making any pretention to said property, we think unauthorized by law.
The judgment of the District Court is, therefore, avoided and reversed; and it is ordered that judgment be rendered for the plaintiff against the defendant, and that the defendant institute the suit by him mentioned in his answer, and pay the costs of this suit, the plaintiff paying the costs of this appeal.
Hodie simplex. Vol. 6, p. 165, Editio Leipzig.