The judgment of the court was pronounced by
King, J.F. Sims, the defendant in this action, obtained a judgment against IV. Gray, and, in virtue of & fieri facias issued thereon, certain lands described in that judgment were seized, which, failing 1;o produce two-thirds of their appraised value on the first exposure, were sold on a ei-edit of twelve months, and adjudicated to H. W. Dunlap, the plaintiff, who gave his bond with surety, for the price, with five per cent interest. Several months after the maturity of the bond, Sims caused an execution to issue thereon, direcliogthe sheriff to make its amount, with interest and costs, by seizing property of the principal and surety in the bond. Dunlap, the plaintiff, enjoined the writ, on the ground thathe was no party to the judgment under which it issued, and that his property was illegally seized to satisfy it. The injunction’was dissolved in the court below, with fifteen per cent damages and five per cent interest on'the amount of the judgment enjoined, and the plaintiff has appealed. He contends that the judgment of F. Sims against; N. Gray, was satisfied, by the seizure and sale of property to an amount sufficient to cover the debt, interest and costs, for which a twelve-months’ bond was given.
No principle is better settled in our law, than that a sale of property under execution, on a credit of twelve months, neither satisfies the judgment nor novates the debt. The numerous authorities to which we have been referred from other States, where a different rule prevails, are wholly inapplicable here. 7 Mart. N. S. 205. 9 La. 92.
It is next contended that the clerk should have issued the execution in favor of F. Sims, against Dunlap and Lilly, the parties to the bond, and should have stated, in the body of the writ, that it was the amount of a twelve-months’ bond entered into by Dunlap and Lilly, for the purchase of certain land, &c. No' such recital in the body of the writ, as that contended for, is required by law.. The writ directed the sheriff to seize and sell the property of Dunlap and Lilly, the parties to the bond ; and on it the clerk endorsed that it was issued upon a twelve-months’ bond, and that the properly seized under it should be sold for whatever it would bring in cash, which is in strict accordance with the requirements *241of the Code of Practice. See arts. 719, 720, 721. The style of the original suit was correctly preserved in the writ. This follows as a consoquence from the well recognized principle to which we have adverted, that a sale on twelvemonths’ credit operates no novation of the debt. The execution which issues on a twelve-months’ bond, is to effect a sale for the purpose of satisfying the judgment.
The objection that the plaintiff was not served with the notice of seizure required by the 654th article of the Code of Practice, cannot be considered on this appeal. It was not made a ground of injunction by the plaintiff, and no evidence in relation to it appears in the record. In the absence of such testimony, the officer must be presumed to have done his duty.
The plaintiff has no just ground of complaint against the damages assessed by the lower court. The injunction was evidently obtained to protract the payment of a debt due, which the plaintiff in execution was proceeding legally to collect.
Judgment affirmed.