
    M. L. Stansel, Executor, vs. C. H. Moore.
   Gunby, J.

A surety on a release bond cannot be sued until proper steps have been taken to enforce the judgment against the principal; but the surety must except to the suit in limine litis. We regard the plea in mom, or want of default, as similar to an exception of prematurity, or of want of amicable demand, a jurisdiction ratione yerto ¡ue, which must, be filed in limine.

2. A District Judge has no right to refer a dilatory exception to the merits; if he does so, the party filing the same should mandamus him to grant a trial on the exception ; for this Court will not notice a dilatory exception tried together with the merits.  