
    No. 306.
    George H. Wiley v. Woodman & Bement.
    No jincb proo.ppdinff as a pipa in abatement--, or bar to tho action, is known to or vppoftimert by our law. T)ip oxppnlion ot a jud^mont pan bp. stayed only by minnption and bond.
    A 3’PEAL from the Bixtli District Court of Now Orleans, Howell, ,T.
    
      Race & Foster, for plaintiff and appellee.
    
      Emerson <0 JTunliia//on, for defendants and appellants.
   Laratjvb, J,

This suit was-bronght against the defendants, upon their acceptance of a draft, payable to the order of plaintiffs, for $500.

The defendants, for answer, pleaded a general denial and prayed for a judgment in their favor.

Tho Court below, after hearing tho evidence, gave judgment in favor of plaintiff, for $500, with interest and costs of suit and protest. No appeal was taken from that judgment.

But, subsequently, the defendants filed a document of tho following-tenor, and which they call a plea in bur :

“Now conic the defendants in tho above entitled suit, and to the Court aforesaid respectfully represent that tho plaintiff ought not further to prosecute tho same, or further to prosecute the writ of -fieri facias herein issued against tho defendants, because they say that the said plaintiff is an alien, horn and resident in foreign parts, to wit: the State of Missouri, ¡j,nd out of the allegiance of the State oí Louisiana and of tlie Confederate States of America, and within the allegiance of a foreign country and government, to wit: the country and Government of the United States of America, of which one Abraham Lincoln is President; and that said plaintiff, before and at the trial of the institution of said suit, was and now is inhabiting and residing in tho said United States of America. And respondents further say, that, after and since the issuing of said writ, a public war has been commenced and proclaimed, and is now carried on and waged between the said Confederate States, within which and under the allegiance of which defendants are and reside, and tho said United States of America and the Government thereof ; and that the said plaintiff is an enemy of said Government of tho Confederate States, and adhering to tho enemies thereof, all which resposdents are ready to verify ; and defendants also show that, since the issuing' of said wait, they have obtained a respite from their debts and creditors, by virtue of proceedings in the Sixth District Court of New Orleans, in the suit of Woodman & Bement v. Their Creditors, of which plaintiff had notice and was placed upon the bilan ; whereupon they pray judgment that all further proceedings and wait herein be stayed and qnasliod, and that the plaintiff and the sheriff of the parish of New. Orleans be ordered to stay all proceedings under said writ, until the plea now interposed shall be heard, and for general relief, etc. ”

On motion of defendants’ counsel, it was ordered by the Court below' that plaintiff show' cause on Monday, 23d April 1861, why the older prayed for should not be granted.

The plaintiff excepted to said rule, on the ground that judgment having been obtained and execution issued, the defendants cannot sot the same aside on exception, plea in abatement or rule, but only by injunction on giiv'.ng bond; that no such process or proceeding as that instituted by defendants is known under our law in such cases.

The Court below', after hearing counsel, sustained the exception of plaintiff and dismissed the rule or plea in bar filed by defendants, with costs.

The defendants appealed from that judgment.

IVe. are clearly of opinion that the District .Judge did not err. The appellants have not appeared in this Court to point out to us the law authorizing such proceedings as by them adopted to arrest the fieri facias or execution upon the judgment, and we are not aware of any laws under which said writ or execution could be arrested, except those regulating-injunctions, and requiring the party to state under oath the facts which, according- to his belief, render necessary, and to annex to his petition his bond in favor of defendant in injunction. C. P. Arts. 296, 304.

The appellee has asked for damages as for a frivolous appeal. We believe ho is entitled to them.

It is therefore ordered and decreed, that tho judgment appealed from be affirmed, with fifty dollars damages, and that the appellants pay all costs.

Howni/o, .T. recused.  