⅜ delivered the opinion of the court The defendants are sued on a twelve months’ bond, on which their ancestor was ’ for Rees: the^ pleaded the plaintiffs first to proceed against the tract of land . , ... , by their ancestor’s principal, and specially mortgaged for the payment of the bond.

The plea was sustained, and the plaintiffs appealed.

The appellants’ counsel shew that, at the trial, he introduced the record of the suit of Dejean vs. Rees, in which the land referred to was exposed to sale on a ji.fa. issued on the twelve-months’ bond, and the sale stopped by a writ of injunction. 2. The record of a suit instituted against Rees, by his wife, in which she obtained a writ of injunction to prevent the sale of her property by some of his creditors, other than the appellants, or their insolvent, in which suit she was nonsuited. 3. The record of another suit between the same parties, in which she obtained a writ of injunction to prevent the sale of the premises, at the suit *195of the insolvent, which injunction was after-J wards maintained, notwithstanding the oppo. . . c , .. sition oí the appellants.

Brownson deposed he was employed by the appellants to procure the dissolution of the injunction obtained by the wife: that in the first suit, being also employed by another creditor, he made opposition in his name, thinking it useless to act in that of the appellant’s also, as a successful issue on the opposition would inure to their benefit: in the latter suit he acted in the name of the appellants.

We think the district court erred. The property pointed out to be discussed, having been claimed by the wife, who obtained an injunction to prevent its sale, the plaintiffs were relieved from the obligation of discussing property then in litigation. Civ. code, 3016.

It is, therefore, ordered, adjudged, and decreed, that the judgment be annulled, avoided, and reversed, and the case remanded for further proceedings: the appellee paying costs in this court.