On Rehearing.
Ludeling, O. J.In this case, having decided that the potestative condition, upon which the penal clause was to become exigible, had not happened, the Court should have rendered judgment as in case of nonsuit.
Where the demand is premature, or if the obligation be conditional, and its execution be demanded before the condition has been fulfilled, the suit must be dismissed, leaving to the party his right to bring his action in due time. C. P., Art. 158. 13 La. 404. 18 La. 537.
It is therefore ordered, adjudged and decreed that the judgment of this Court, rendered on the 4th day of May, 1868, be amended, and that the judgment of the District Court be avoided and reversed. It is further ordered, adjudged and decreed that there be judgment in favor of the defendant as in case of nonsuit, that the plaintiffs pay the costs of the lower court, and that the defendant and appellee pay the costs of the appeal.