delivered the opinion of the eourt.
*419This is a suit brought by a company of ship-carpenters to recover from the owners of the steam-boat Columbia, a balance which they alleged to be due to them for work and labor, and materials furnished in repairing said boat by contract with the proprietors. The cause was submitted to a jury in the court below, who found a verdict for the plaintiffs, on which a judgment was rendered with costs, and from it the defendants appealed.
The principal points filed in this court against the correctness of the decision of the district court, are,
First, that the suit was prematurely commenced as according to the terms of the contract on which the action is based, the defendants were not bound to pay the sum now claimed, until three and four months after the work was completed, or the boat commenced running; which time had not elapsed previous to the institution of the present action.
Second, That no amicable demand of payment was made, or proven to have been made, on the trial of the cause, &c.
LbiIatory_excep^ plead TnlimL ltes‘ Tha amicable spetíaUy denied! the°pkintíff r proof of the fact.The objection to a recovery by the plain-J J J r tifís, on the ground alleged in the first of these points, being a dilatory exception, oag^lt to have been pleaded in limine lites, which was not done, and consequently no advantage can now be had from it.
As to the merits of the ease which depend on the testimony, we find nothing on the record to authorize an interference with the verdict of the jury.
In relation to the amicable demand, it is believed that it forms no part of the merits of a cause to which a general denial is, perhaps, exclusively applicable. It may be considered as analogous to an allegation i[1 a petition by which the capacity in which a plaintiff sues is declared. Such as executor, administrator, or heir, &c. which must be specially decreed, in order to put the petitioner on the proof of such fact.
It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.