
    
      RAWLE vs. SKIPWITH & AL.
    
    East’n. District.
    
      May, 1829.
    No judgment by default can be taken, until illegal objections are disposed of.
    Appeal from the court of the third district,the judge of the second presiding.
   Porter, J.

delivered the opinion of the court. This case has been already before the court, and was remanded for further proceedings, and on its return to that of the first instance, judgment by default was taken against the defendants, and the judgment made final. They came into court, and moved to have the judgments set aside, on different grounds alleged by them; but the judge refused to do so, conceiving, that by the 547th and 548th articles of the code of practice he had no power to touch the decree of the court. The defendants appealed.

When the cause was last before the court, it was presented to us on exceptions, filed to the petition. We decided that the court below had erred, in sustaining one of the exceptions, and we also examined and passed on all the others which depended on the pleadings. Those which required proof to support them, were not noticed, and one was expressly reserved, on involving an enquiry into the merits.

We, therefore, think there was an error in the court of the first instance giving judgment by default, while these exceptions were undisposed of. One of them, the allegation of the wife, that she was not responsible; because the contract, although entered into by her in solido, was in fact an engagement, where she was surety for her husband, and was a defence on the merits.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; and it is further ordered and decreed, that the case be remanded to the district court, to he proceeded in according to law, the appellee paying costs of this appeal.  