delivered the opinion of the court.

The plaintiff alleges that at a public sale made on the 24th of May, 1834, the defendant, marshal of the United *585States for the Eastern District of Louisiana, sold to the petitioner, the last and highest bidder, a certain plantation and slaves for the sum of thirty thousand and one dollars; that though the purchase money has been tendered by the plaintiff to him, the defendant, as marshal, he has refused to convey or deliver to him the property purchased, though often requested, to the damage of the plaintiff one hundred thousand dollars; that he had thereby lost the benefit of two crops, and that his damages during the last year by reason of the premises, amount to the sum of fifty thousand dollars. The plaintiff prays that the defendant, John Nicholson, be decreed to deliver up and convey to him the plantation and negroes thus sold, on the payment of the purchase money, which the plaintiff is now ready^and willing to pay, and that he be condemned to pay one hundred and fifty thousand dollars damages for his illegal acts in the premises. There is also a prayer for general relief. There are references in the petition which show that the property was offered for sale under process issued on a judgment obtained in the District Court of the United States for the Eastern District of Louisiana.

The judge, considering the case before him as an exception taken ore terns to the jurisdiction of the court, dismissed the petition on the ground of the want of jurisdiction.

Admitting that the court of the first district has no power to compel the officer of another court to perform a ministerial act in relation to matters dependent in and cognizable by that court, it by no means follows that the officer is not liable to- be sued in any court of competent jurisdiction for a breach of duty, or for any injury or tort committed by him in the course of his official duties. There might be cases where the latter court would not proceed in the suit, but await the decision of the court under the process of which the act was performed; this would be a question of comity and not ,of jurisdiction. We are not aware that the official acts of the marshal of the United States are entitled to any exemption from the responsibility of public officers executing the process of a court.

*586It is said that the action for damages is prescribed. Prescription was not pleaded in the court below: the cause is before us solely on the question of jurisdiction. If the plea of prescription was made in this court, the plaintiff has the right to have the cause remanded for trial upon that plea. It is, therefore, ordered that the judgment of the District Court be reversed, and the cause remanded for further proceedings'; the appellee to pay costs.

dissenting. — I think with the district judge, that he could not entertain jurisdiction of this case, even for damages, unless the plaintiff had alleged in his petition that the District Court of the United States had ordered the defendant to make the conveyance and delivery, and that the defendant refused to do so.

Without this allegation, the marshal must be presumed to have done his duty. Whether he has or has not, is a matter between him and the court to which he belongs, which I conceive we have no power to determine in any case. We must hold him to be the organ of the court, until that court decides that he has ceased to be so.

Under this view of the situation in which the defendant stands, I cannot separate the officer who obeys and executes orders, from the court which gives them. His acts and his omissions are the acts and omissions of the court. The refusal of the marshal in this instance to make a sale and delivery of the property in controversy, is the refusal of the District Court of the United States to cause that sale and delivery to be made. That refusal cannot subject the defendant to an action of damages.

The District Court of the United States, having first taken cognizance of the suit under which the property was sold, has exclusive jurisdiction of all proceedings arising therein; and the title and delivery of the property sold under execution, are proceedings in the suit. M’Kim vs. Voorhees, 7 Cranch, 289. Wayman vs. Southard, 10 Wheaton, 1.

If the remedy afforded to the purchaser is not as complete as it would be under a sheriff’s sale, the difference arises from *587the peculiar organization of the federal judiciary, and all considerations of occasional private loss, or inconvenience on account of its insufficiency, must give way to the paramount reason of state, which requires that the two jurisdictions should be kept distinct and separate. '

I am of opinion that the judgment of the district court ought to have been affirmed.