BLANCHARD ET AL. vs. STATE OF LOUISIANA, 6 La. 290

Martin, J., delivered the opinion of the court.

The petitioners obtained an injunction to stay proceedings on a seizure of their property, on an execution of the treasurer of the state, for arrearages due by a sheriff, whose sureties they are, suggesting that the notice served on them, and the seizure of their property, was illegal and void; the act approved on the first of March, 1827, providing that no person to whom an execution issued by the state treasurer, for the collection of any money due to the state, hy collection of taxes in the different parishes, shall seize and sell the property of any surety or sureties of such collector, until after having previously seized and discussed all the move, able and immovable property of such collectors, situated in the parish in which each of them shall have his fixed domicil.

The petition avers that their principal had movable and immovable property in his parish, at the time of the seizure of their own, and still continues to possess such property. The act approvedmMarch, 1827, absolutely prohiJ»‘s p^i^the prS ^ been exhaust- The district attorney demanded the dissolution of the injunction, on the ground that the petitioners had neither pointed out any property of their principal, or made atender of money to defray the expenses of a discussion. The injunction was dissolved, and the petitioners appealed.

Their counsel has contended, that before the act of 1827, sureties of collectors could not be entitled to the plea of discussion, nor any benefit held out by law to ordinary sureties, being bound jointly and severally with their principals. Their situation is improved by the act, and they are placed even on a more favorable footing than ordinary sureties. No part of their property is to be touched, till every part of that of their principal in the parish has been seized and discussed.

Any seizure of their property, before that of their principal in the parish was seized and discussed, was an illegal act against which they had a right to pray for the interference of the court.

It has appeared to us the defence of the district attorney, * A rests on the assumption of the proposition, that the act of places the securites of collectors, simply on the same 1827, footing of ordinary sureties, by allowing them to suspend proceedings against their property, on a tender of money to defray the expenses of a discussion; hut we agree with the counsel of the appellant, that the act of 1827, absolutely prohibits any resort to their property, till after all that of the principal in the parish has been exhausted. not Resumed. 18 It has however been lastly contended, on the part of the state, that the injunction was correctly dissolved, on account 0f the insufficiency of the petition, which alleges vaguely the existence of property of the principal in the parish, without specifying any distinct object of it, so as to enable the state to disprove the averment.

The petitioners have expressly brought this case within the words of the act of 1827. Insolvency is not presumed, especially in so responsible an officer as the sheriff. The coronor was bound to look first for the property of the principal; this is not pretended to have been done. The existence of property is sworn to, and we look in vain in the record for any circumstance, from which it might be inferred, that the interposition of the court was improperly resorted to.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, the injunction reinstated, and the case remanded for further proceedings.