On Rehearing.
Marr, J.The rehearing was granted, in this case, to David M. Hol-lingsworth, and to the succession of McCloskey as against the city of New Orleans. No complaint was made as to that part of the original-decree which affirmed the judgment of the district court on the opposition of E. H. Earrar; and it became final by the lapse of time. Amici' curiae have asked a modification of our opinion, in so far as it relates-to the prescription in favor of sheriffs and their sureties; and we have-carefully reconsidered the whole case.
I.
Our decision in the claim and opposition of Hollingsworth rests-upon the single ground that the money demanded by him was not received by the sheriff in his official capacity; and that the sureties were not liable for that reason. We see no reason to doubt the correctness of the original decree rejecting this demand; and it will not be disturbed.
*152II.
We were in error as to the amount due by tlie succession to the city 'for taxes of 1878 on the property in square No. 172. The city claimed $1202 50. It was proven that $525 had been paid by purchasers of part of the property; and the judgment of the district court reduced the amount to $677 50. The assessed value of the property was $50,000;. and the limit of taxation was fixed by the act of 1876, sec. 11, p. 57, at one and a half per cent. At this rate the whole amount of the tax would have been $750; and the actual balance, after deducting the $525 paid oh account, should have been $225. The judgment of the district court, and our decree affirming it, must be corrected in this respect.
III.
The decree in favor of Farrar having become final is beyond our control. The only defense set up against it was the prescription of two years. In the agreement of counsel it was admitied that no demand had ever been made on the sheriff or his sureties until -about two months before the opposition was filed. As we shall see hereafter, the prescription in favor of the sheriff and his sureties for money received by him in his official capacity, does not begin to run until demand has been made of the sheriff, and he has refused or failed to pay. As the demand was made for the first time only about two months before the filing of the opposition, the prescription of two years had not been acquired; and, strictly speaking, it was not necessary to express the opinion that this prescription was not applicable. In support of the plea our attention was called to a single decision, Hugh vs. Hernandez, 25 An. 360; and we adopted the views of the justice who dissented in that case, that the demand was not subject to the prescription of two years. A review of the authorities cited in argument, on the rehearing, inclines us to the opinion that the question has passed into the domain of res adjudicada; and that the views expressed in the original opinion are contrary to the settled jurisprudence of the State, which we would not willingly disturb.
In Semple vs. Buhler, 6 N. S. 665, which was a suit against a sheriff for malfeasance in taking the wife of the purchaser as surety in a twelvemonths’ bond, the court held that the action was barred by.the pre•scription of one year ; and in Fisk vs. Browder, 6 N. S. 691, which was also a suit against the sheriff for malfeasance in making a false return ón a fieri facias; the court again decided that it was prescribed by the lapse of one year.
In 1837 the Legislature passed an act entitled “ An Act to extend the time of prescription in reference to the acts of sheriffs,” which provides that “ no sheriff or his security or securities shall be able to prescribe against his acts of malfeasance, non-feasance, costs, offences and *153quasi-offences, but after the lapse of two years from the day of the omission of acts complained of.” Acts of 1837, p. 34.
Under the dominion of this act a suit was brought against a sheriff and liis sureties, in his official bond, for his failure to pay to the judgment creditor a sum of money received by him, proceeds of a sale under fieri facias. The court being of opinion that the act covered all the cases in which the sureties of the sheriff could be held liable, maintained the plea of prescription of two years. Mullhollan vs. Henderson, 3 Rob. 297.
In Brice vs. Jones, 5 An. 635, which was a suit against a sheriff for damages for a wrongful seizure, the court held that the prescription of two years was applicable ; and in Kohler vs. Walden, 23 An. 299, which was a suit against a sheriff and his sureties for his failure to pay over money received by him in his official capacity, it was decided that the demand was subject to the prescription of two years.
In the general compilation, acts of 1855, under the title “An Act relative to sheriffs,” p. 367, sec. 10, the act of 1837 was modified and re-enacted as follows :
“That the sheriffs and their securities shall be able to prescribe against their acts of misfeasance, non-feasance, costs, offences and quasi-offences, after the lapse of two years from the omission or commission of the ,acts complained ofand this section was re-enacted, iotidem verbis, in the Revised Statutes of 1870, sections 2816, 3546. No doubt the word costs was a misprint for torts, originally; and it was merely copied from the original, in 1855, and again in 1870.
In Fuqua vs. Young, 14 An. 216, which was a suit against the sureties of a sheriff to recover a sum of money received by him from sales under execution, the court decided that the prescription of two years began to run only from the date of the demand by the judgment creditor, and non-payment by the sheriff; and this doctrine -was affirmed in Kohler vs. Walden, 23 An. This question came before us in Soulé vs. Norwood, 30 An. 486 ; and we decided that, by the terms of the O. P. art. 766, the sheriff was not in default for not paying until the first demand of payment made by plaintiff; and that the right of action did not accrue, and prescription did not begin to run, until the sheriff was put in mora for non-payment of the money collected by him.
We think these several decisions establish the following propositions :
1st. That actions against sheriffs and their sureties are prescribed by the lapse of two years from the day the right of action accrues. See, also, Hardee vs. Dunn, 13 An. 161.
2d. That where the wrong complained of is malfeasance, an active violation of the official duty of the sheriff, as for a false return, a wrong*154ful seizure, etc., the right of action, accrues, and the prescription begins to run from the date of the act.
3d. That where the wrong complained of is merely a passive violation by the sheriff of his official duty, as failure to pay over money collected by him, the right of action accrues, and the prescription begins to run only from the date of the demand made by the party entitled, or his agent or attorney.
It will not be expected that we should say or intimate in advance how we would decide any question' whatever that may hereafter be brought before us ; but we think it not amiss to say that should we be required to pass judicially upon the question of prescription in favor of sheriffs and their sureties, we shall not consider ourselves bound or concluded by the views expressed in our original opinion in this case, however correct we might consider them, if we were at liberty to treat the question as res■ nova.
Our former decree must be modified in conformity with the views herein expressed ; and, accordingly, it is now ordered, adjudged and decreed, that the claim of the city of New Orleans against the succession of Hugh McOloskey for taxes for the year 1878, on the property in square No. 172, be reduced to the sum of two hundred and twenty-five dollars: that the costs of this appeal be borne equally by the city of New Orleans, the succession of Hugh McOloskey, and David M. Hol-lingsworth : and that the original decree herein be, in all other respects, affirmed.