
    Thomas Powell v. Joseph A. Graves.
    Where «i parly consents lo go to trial on the. merits, without insisting on the previous action nr the court on his exceptions, ho is presumed to liare waived the same..
    APPEAL from the Second District Court of New Orleans, Morgan, J.
    
      Mott & Frazer, for plaintiff
    
      Gaither <& McPheeters, for defendant .and appellant.
   Land, J.

Tn this ease, a rule was taken on Williamson Smith, the surety of the defendant on an attachment bond, 'to show cause why he should not be condemned to pay llio amount of plaintiff’s judgment, interest and cost.

In answer to the rule, the surety pleaded several exceptions, which do not appear to have been acted on by the District Judge. And as the surety consented to go to trial on the rule, without insisting on the previous action of the court on his exceptions, he is presumed to have waived the same.

On the trial, the District Judge says :

“ The defence to this rule is, that the defendant therein has not had the benefit of the Sheriff’s diligence during' the whole time ho was entitled to it, in order that the debt for which he is security might have been collected from the principal.
“ A fieri facias issued, to be returned in seventy days. The law prohibits any longer delay than this. O. P. 641. 'Counting the day upon which the fi. fa. was received by the Sheriff, and the day upon which it was returned, seventy days had elapsed. It seems to me the defendant has had all the delay which ho was entitled to in law. If he suffered, he should have made it appear.”

The District Judge did not err; and for the reasons assigned by him, it is ordered, adjudged and decreed, that the judgment be affirmed, with costs.  