
    State of Louisiana v. The Judge of the Second District Court of New Orleans. Widow Benjamin Poydras praying for a Mandamus.
    Plaintiff sued out execution against the heirs of Poydras, A rule was taken by the relator to set aside the execution on the ground, that execution could not be granted against a succession belonging to minors — accepted by the minors with thebenefit of inventory. The rule was dismissed, and the District Court refusing a suspensive appeal, a manclwmis was prayed for. By the Coivi't: The right of the plaintiff to execute the judgment which he has obtained for a sum of money can only be suspended upon a petition, affidavit and bond given for injunction. 0. P. 29S.
    The laws of 1S81 and 1838, relative to injunction of execution, afford a direct remedy against the securities in injunction bonds, which is not accorded in case of appeal bonds, i\t<mdmnus refused.
    JjlOR the relator, Janin.
    
   Buchanan, J.

The State of Louisiana sued the heirs of Benjamin Foydras for a large sum of money, and recovered judgment against them for the same. On appeal, the judgment was affirmed by this court; and when the decree of this court was recorded in that of the first instance, the counsel of plaintiff ordered a writ of fl. fa. to issue, which was done accordingly. Thereupon, Louis Janin, Fsq., of counsel for defendants, took a rule in the name of the present relator upon the Treasurer of the State, to_show cause, on a day named in the rule, why the execution should not be set aside, on the ground that the same was issued contrary to law, and should not have been granted against a sucoessiotl belonging to minors, and accepted by them under the benefit of an inventory only, the law prescribing a different remedy in such cases. No stay of proceedings was ordered pending the rule ; no application was made for an injunction. After issue joined and argument, the rule was dismissed; and the mover in the rule applied for a suspensive appeal from the judgment dismissing the rule, which was refused by the District Judge.

The relator, upon this state of facts, has applied to this court for a writ of mandamus to the District Judge, “ requiring him to allow a suspensive appeal in the premises.”

The application is inadmissible on the face of the petition. The relator desires to substitute an appeal in the place of an injunction. That cannot be consistently with existing laws. The right of the plaintiff to execute the judgment which he has obtained for a sum of money, can only be suspended upon a petition, affidavit and bond given for injunction. Code of Practice, 304. Amendment of Article 298 of the Code of Practice, Act of 7th April, 1826, section 9. The laws of 1831 and 1833, relative to injunction of executions, afford a direct remedy against the securities in injunction bonds, which is not accorded in the case of appeal bonds.

Again, it is the province of the Judge of the court which has recorded the judgment, to decide in the first instance, upon the presentation of a petition to that effect, whether a legal cause for the issuance of the writ of injunction exists, by reason of illegality in the execution of the judgment previously rendered and affirmed by this court. O. P. 617, 623, 629. The jurisdiction of the District Court, in virtue of those articles, over the subject matter, cannot be evaded, in the mode sought by the relator.

Mandamus refused, at costs of relator.  