The opinion of the court was delivered by
Fenner, J.The H. B. Claflin Company instituted this attachment suit against the commercial firm of B. Feibelman & Co., claiming an indebtedness as due them by the defendant of $30,970.70, of which, however, the sum of $22,500 was claimed by them as holders of three promissory notes of $7500 each, which were made by the firm of Cohn & Feibleman and endorsed by the defendant and not due at the date of suit.
The defendant firm promptly interposed an exception to the cause of action on the ground 11 that the action is premature and the debt nob due.” Subsequently, Sweetzer, Pembroke & Co., and sundry other alleged creditors of B. Feibelman & Co., who had levied attachments on the same property attached by the Claflin Company, intervened in this suit, .and setting up that, as to the said claim for $22,500, it could not authorize or sustain an attachment, they prayed that, to this extent, the plaintiff’s attachment be not sustained or recognized as inferior to their attachments.
This intervention was put at issue by answer, and the defendants also appeared and filed an answer to the principal suit, in which, first “ reserving the benefit of the exception herein filed,” they pleaded the general denial.
On January 18, on motion of defendant’s counsel, without objection, the exception was referred to the merits. The cause was then assigned for trial instanter, and, after introduction of evidence and argument of counsel, was submitted to the court.
*521Judgment was rendered in favor of the Olaflin Company to the extent of the debt due, with recognition of their attachment privilege, but rejecting their demand on three notes of $7500 each above referred to, and also sustaining the intervention of Sweetzer, Pembroke & Oo. et al.
From this judgment the Olaflin Company appeals.
The appellant claims that, by referring their exception to the merits and by going to trial on the merits without requring the court to pass on the exception, defendant must be held to have waived th© exception.
He relies on the following authorities: Mix vs. Creditors, 39 An. 624; Boone vs. Carroll, 35 An. 284; Chaffe vs. Ludeling, 34 An. 966; Francis vs. Levine, 26 An. 312.
Reference to them will show that they apply only to dilatory or declinatory exceptions, the effect of which is only to retard, or change the forum of the action.
The exception here is not of that character. It is, by its terms, an exception to the “cause of action,” based on the elementary proposition that the indorser of a promissory note incurs no other obligation except to pay in ease the maker, on due demand at maturity, shall fail to pay and in case due and legal notice thereof shall be given to him. Hence, before maturity, the indorser is not the debtor of the holder who has no cause of action against him. Such a defence would be conclusive under the general issue, or even on application to confirm a default. It was never waived by defendant, was entirely susceptible of being referred to and tried with the merits as part of them, and, in point of fact, the judgment, though it does not mention the exception, is obviously based upon it.
We think, moreover, the intervenors properly established their right to intervene. They were attaching creditors of the same property, and made their attachment proceedings parts of their petition. These exhibited the prima faoie proof of debt which the law sanctions as sufficient to authorize the attachment, and if they were authorized to attach they were authorized to intervene and to protect their attachment from being nulllified by the allowance of a preference in favor of a prior illegal attachment. They were not bound to anticipate the issues involved in their suit against their debtor by proof of their claims such as would sustain a final judgment against him. Their interest *522is too palpable to admit a dispute, since the maintenance of plaintiff’s attachment would render their own futile.
The case is fully within the authority of National Bank vs. Moss, 41 An. 227, where we held that an attachment must stand or fall according to the state of facts existing at date of issuance; that in order to sustain it, the debt must be unconditional, and hence that the holder of a bill of exchange, not yet due, can not attach against the drawer of the bill because his liability does not arise until after compliance with the conditions of presentment at maturity, failure of the drawee to pay, and due notice. We can discover.no error in the judgment appealed from.
Judgment affirmed.