This is an action for the balance of an account for building a steamboat, and furnishing material and labor, to which the general denial was pleaded. After the cause was partially tried, the defendant offered to file the plea of payment, which he was not allowed to do on the ground, as stated in the bill of exceptions, that “every means of defense, such as release, novation, contract or payment by contract, which goes to show the extinguishment of an obligation admitted or proved to have once existed, must be pleaded specially, and cannot be urged under the general issue, which only denies the facts alleged in the petition. The plaintiff might otherwise be taken by surprise.”
It need only be remarked that the learned Judge put it out of the power of the defendant to plead specially, as he desired to do, and thus conform tó the rule of law contained in the bill of exceptions. If the plaintiff was not prepared to meet such a plea, he was entitled to a continuance to obtain evidence, But the Court should have allowed the plea *208to be filed. The grounds of exclusion or refusal, set out in the bill of exceptions, would authorize the filing. It was not too late. Payment is a peremptory exception, which may be pleaded at any time before judg■ment. C. P. 345, 346. 6 L. 455.
It is therefore ordered that tho judgment appealed from be reversed and the case remanded, with instructions to tho .District Judge to allow defendant’s plea of payment to bo filed.'