ON Application fob Rbhbaking.
Pociié, J.Mrs. Pipkin enjoined the seizure of apiece of property seized as her husband’s, on the ground that she had acquired the same since the pretended seizure, and on the further ground that there has been no legal or valid seizure of the same.
Our decision maintained the plea of estoppel on the ground that .the wife as transferree of her husband under a title executed subsequently to the alleged seizure, was bound by. his judicial admission, made in a previous suit for injunction instituted by himself with a view to restrain the same seizure, iu which he had not only admitted, but had alleged, the legality of the seizure .which he had sought to arrest on other grounds.
In applying for a rehearing, her present counsel urge with confidence, and argue with great zeal, that we had entirely misunderstood the real issue in the case.
Their contention is, that the real issue hinged upon the validity of her title as affected by the nullity of her acquisition of the property while it was in the possession of the sheriff under execution. They argue that when the dation en jjaiement was made in her favor by her husband in August, 1879, the writ under which the sheriff had seized, and which had issued in Mai ch preceding, had expired in May following, and had not been returned and renewed as the law requires; and that therefore the property was not under seizure at the date of the transfer to her.
Hence, it is asserted that our decision is predicated on an issue which was not an element in the case.
A reference to the petition of injunction shows that no allusion is even made to the now alleged extinction of the writ, and nothing in the defendants’ answer justifies even a¿u implication that such an issue was made in the pleadings.
The sheriff’s return from which, it is argued, flows the proof that the writ was extinct in August, 1879, was not offered in evidence by plaintiff, but by the defendants themselves. *
On the first page of the brief presented to us on appeal by the counsel who thus represented plaintiff, we find the following statement, which is full of significance: “The point in this case is, whether on March 5,1879, the sheriff made a valid and legal seizure of certain *784property in the town of Clinton.” That was the issue which the defendant met by their plea of estoppel, ana that was the issue which our decision disposed of. Nothing in the record justifies the remotest inference that any other or different issue was tendered, met or passed upon in the lower court.
The ingenious feat of injecting a new and entirely distinct issue in the case on an application for rehearing is as bold as it is impracticable. It stands to reason that we cannot sanction such a practice, which is ' repugnant to all known rules of precedence-in our jurisprudence.
Rehearing refused.