Howes, Hyatt & Co. v. J. S. Chester & Co. , 33 Ga. 89 ( 1861 )

By the Court —

Lumpkin, J., delivering the opinion.

This is a case at the instance of the citizens of New York, against the citizens of this State. The plaintiffs were not alien enemies at the time of the institution of suit, and have become alien enemies since. What disposition shall be made of the action? Shall it be dismissed or continued on the docket? The authorities are scant and confused upon the question. Precedents, cited from Massachusetts, seem to hold that a continuance is the proper practice, though they maintain that some process has to be sued out and served on the defendant, by way of renewing the action at the termination of hostilities. This, we apprehend, would require legislation in Georgia. The English authorities are equally unsatisfactory. All maintain, however, that the proper plea tobe filed in such cases, is a plea of puis darien continuance, to the disability of the plaintiff. In other words, a plea in abatement; and that the effect of the plea is to suspend, not to bar the plaintiff's remedy.

Ve ask, if this plea is sustained, .does it not carry the case out of Court? Take any of the analogies of the law; for instance, a suit by a feme sole, who, during the pendency of the action, marries. If the husband refuse to join in the suit, and being an alien enemy, does not the action, however properly brought in the beginning, abate — that is, goes out of Court.

Upon the whole, we think that, upon authority and principle, the judgment of the Court below dismissing the writ, was right. It is for the Legislature to direct what disposition shall be made of this and similar cases, as well as to provide for the payment^of the costs, if they see fit.

Let the judgment be affirmed.