
    M'GUIRE vs. PECK.
    Western Dist.
    
      October, 1839.
    APPEAL FROM THE COURT OE THE SEVENTH -JUDICIAL DISTRICT, FOR THE PARISH OE OUACHITA, THE JUDGE THEREOF PRESIDING.
    A dilatory exception, taken in limine lilis, may be pleaded in the beginning of the answer to the merits.
    This is an action on a promissory note, against the maker thereof.
    The defendant pleaded the want of an ámicable demand, and averred that the suit was oppressive and illegal, as the plaintiff agreed not to sue, in consideration of the defendant having put into his hands certain promissory notes gmount-jng to more than the demand sued on, which he promised to take in payment, and collect and pay over the surplus. He further avers, that the plaintiff is not the legal owner of the note sued on, and is not in any manner authorized to receive payment; that he has a valid defence against the original payee thereof, for payments made, &c. ■ >
    A dilatory ex-¡imine'm, may i)e pleaded in the beginning of the answer to the merits.
    In an amended answer, he propounded sundry interrogatories to the plaintiff, to answer under oath in open court, which were answered promptly and categorically.
    At the second term of the court, the plaintiff’s counsel moved to strike out the exceptions contained in the defendant’s answer, as coming too late, after issue joined ; to wit, the want of amicable demand, and the prematurity of the suit; which motion was sustained by the court, on the ground that, being a? dilatory exception, it could not be pleaded in an answer to the merits, or after a judgment by default. The defendant took his bill of exceptions.
    There was. judgment for the plaintiff, and the defendant appealed.
    
      M‘Guire, in propria persona.
    
    
      Copley, contra.
   Martin, J.,

delivered the opinion of the court.

The defendant and appellant has placed his case before us, on a bill of exceptions to the opinion of the court, in ordering the part of his answer which relates to the amicable demand and the pre-maturity of the suit to be stricken out, on the ground that the exception was a dilatory one, and could not be pleaded in an answer to the merits, or after a judgment by default.

The record does not show that any judgment by default had been taken, and it appears that the exception was taken in nm{ne Ufa being placed in the beginning of his answer.

... , , . . . . The court, m our opinion, erred in ordering this part or the answer to be stricken out.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed ; and that the parts of the answer stricken out be reinstated, and the case remanded for further proceedings, according to law; the plaintiff and appellee paying the costs of the appeal.  