
    E. O. Ross, Tutor, v. R. J. Chambliss.
    The defence by the surety on an administrator’s bond, that at the time of the filing of the petition against him, execution against the principal had not been returned, should have been pleaded as an exception in limine litis, and could nob be gone into after an answer on the merits; the execution having been returned, no property found, before the answer was filed.
    APPEAL from the District Court of Carroll, Snyder, J.
    
      R. Short and H. R. Bonner, for plaintiffs.
    
      Wm. Bryan, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The defendant is sued as surety on an administrator’s bond; there was judgment against him, and he appealed.

The defence is a general denial, and an allegation that the conditions of the bond have not been violated.

The plaintiff obtained a judgment against the administrator; but no execution had issued upon it when the petition in this case was filed. Before the filing of the answer, however, execution issued and was returned: no property found.

The defendant now contends, that as the breach of the bond was not ascertained in a legal manner, when the petition was filed, the action was premature and cannot be maintained.

We are of opinion, that this exception, if at all tenable, should have been pleaded in limine litis; and that by answering to the merits, after the execution had been returned, the defendant must be considered as having waived this ground of defence. The plaintiff has asked damages as for a frivolous appeal; we do not consider this a case in which they should-be allowed.

Judgment affirmed, with costs.  