The judgment of the court (Eustis, C. J., absent,) was pronounced by
Prestow, .1.The appellant is sued as endorser of a promissory note. It was protested on the 26th of August, 1850, and notice thereof left at his boardinghouse in New Orleans, on the 27th of that month; The note was drawn at New Orleans — of course, is payable there; and the defendant alleges, that his residence is in New Orleans. The protest and notice thereof in New Orleans, therefore, fixes his liability to pay as endorser.
He plead that the suit was premature. It was-filed the 27th of August, the day after the note was protested, because the drawer, as well as endorser, was sued, he being then liable. But process was not served upon the endorser until the second of September, 1850, when he also was clearly liable.
The defendant offered proof, that he resided in’New Orleans, in support of his plea that the suit was premature. The plea was a dilatory exception. 1 L. R. 420. 7 N. S. 284. And the court rejected, the evidence in support of the exception, the suit being on the trial of its merits, but was willing to receive it on the merits. Whether offered in support of the exception, or on the merits, it tended to establish the defendant’s liability to the plaintiff’s claim, and no injury was done to the defendant by its rejection.
*808It is true, his property was attached on the 27th of August, before he was liable to be sued, having the whole day to pay; and the evidence might have induced the court to dissolve the attachment. The attachment, however, had been disposed of on other grounds, and is not now in controversy. The evidence, under these circumstances, could not destroy the effect of the subsequent citation, after the debt was demandable by suit.
The judgment of the district court is affirmed, with costs.