John McKinley

“ By the 11th section of the judiciary act of 1789, it is enacted, 'that the circuit courts shall have original cognisance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, when the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between a citizen of the state where the suit is brought, and a citizen of another state. ”

“ And in that act is involved the merits of the whole case; because, upon that notice, the debtors had a right to come into court and file their petition, which is technically called an opposition, and set up, as matter of defence, everything that could be assigned for error here, and pray for an injunction to stay the executory process, till the matter of the petition could be heard and determined. ”

“ Art. 738-9, of the Code of Practice. From this view of the case, we think, the order granting executory process cannot be regarded as anything more than a judgment nisi. To such a judgment, a writ of error would not lie. The writ of error, in this case, must, therefore, be dismissed.
THIS cause came on to be heard, on the transcript of the record from the circuit court of the United States for the eastern district of Louisiana, and was argued by counsel: On consideration whereof, it is ordered and adjudged by this court, that this writ of error be and the same is hereby dismissed, with costs. ”