Concurring: Plaintiff held two notes of defendant, one as the principal note, and the other as eollatera security for the payment of the principal note. Both notes are subscribed by defendant to his own order and are by him endorsed in blank. The principal note was only due August 1, 1926, while the collateral note became due May 14, 1926. Plaintiff instituted suit against defendant on the collateral note, on June 12, 1926, alleging himself to be the holder and owner-of the same. Afterwards plaintiff instituted another suit on another collateral note. The two suits were decided adversely to defendant and he has appealed. The notes sued on are not in the records of the two cases but such are the facts as we can gather them from the pleadings and briefs of the parties. The two cases were consolidated for argument in this Court, and were submitted at the same time.
The facts as above stated appear to be undisputed, and it seems to be conceded that the sole question involved, and to be decided by this Court, is whether a creditor who holds two notes of his debtor, the one as principal, due at a fixed date, and the other as collateral, due at an earlier date, may enforce payment by suit, of the collateral note before the principal note becomes due.
Plaintiff’s contention is that defendant could only have advanced that defense by a plea of prematurity, which must be filed in limine, and that it was too late when in his answer to the merits in the suit on the collateral note, defendant first pleaded that plaintiff was violating his promise and obligation evidenced by the principal note, wherein payment of the debt was only to be demanded and enforced on August 1, 1926.
The exception of prematurity is dilatory in its nature. Article 332 C. P. defines dilatory exceptions to be such as do not tend to defeat the action, but only to retard its progress. It is not disputed that dilatory exceptions must be filed in limine. C. P. Article 333. Nor is there any doubt that defendant in this case, failed to file such exception in limine. But is the defense offered in defendant’s answer, a plea *243of prematurity? Is the plea pregnant with the admission that it does not tend to defeat the action? Plaintiff in acquiring the principal note, agreed that he would not demand or enforce payment thereof until August 1, 1926, and in accepting the collateral note also made and subscribed by defendant, was bound to know that he had no right to compel defendant to pay the claim represented by the principal note before August 1, 1926. When defendant gave him the collateral note as security, it is apparent- that it was not for the purpose of hastening the payment of the principal obligation, but to additionally secure its ¡payment. Both notes were secured by mortgage, but on different properties, and plaintiff by accepting the collateral note, was given additional security for the payment of his claim in the shape of another mortgage on other property, and that was the purpose of the pledge of the collateral note. The giving of the collateral note in pledge had the effect of securing the payment of the principal note by another and additional mortgage, but it did not add another or change the original debtor, nor change the maturity of the principal obligation.
Reverting now to the question whether the plea filed by defendant tended to defeat the first action on the collateral note, it is evident that it did, and that it goes to the very foundation of the suit, and is not a plea of prematurity but a plea of estoppel or no right of action, which may be filed at any time, „ and which is preferably tried with the merits. The plea required the taking of evidence and such pleas should be referred to the merits. Succession of Francis, 49 La. Ann. 1740, 22 South. 943; Harvin vs. Blackman, 108 La. 427, 32 South. 452; Dalton vs. Wickliff, 35 La. Ann. 356, 35 South. 355. The trial judge therefore properly permitted the introduction of evidence to sustain this defense.
By Article 3167 of the Civil Code, the pledgee is bound to take the same care of the pledge as if it were his own property, and he is responsible for the loss of the pledge, which may happen through his fault. Where the pledge consists of a credit and that credit becomes due before the pledge is redeemed, Article 3170 says the pledgee shall be justified in receiving the amount and in taking measures to recover it. When received, he must apply it to the payment of the debt due to himself, and restore the surplus, should there be any, to the person from whom he held it in pledge.
The language used by the lawmaker in framing these Articles, clearly indicates that the credit mentioned is a claim against some person other than the pledgor, otherwise the last quoted article would be meaningless.
The jurisprudence of this State abounds with decisions holding that the pledgee may sue as owner upon the credit which he holds in pledge, but neither the Code .nor the jurisprudence make it obligatory upon the pledgee to do so. Plaintiff was not obliged to sue upon the collateral note, a,nd when he did sue thereon nearly two months before the maturity of the principal note, he violated the agreement evidenced by the terms of the principal note whereby defendant had the right to retain the amount called for therein, until August • 1, 1926, when it became due.
The defense tendered by defendant should have been sustained and plaintiff’s suit on the collateral note No. 16,381 of the dockets of the District Court, should have been dismissed without ¡prejudice as in case of non-suit,
For' these reasons, I hereby concur.