| La. | May 15, 1830
• • p delivered the opinion of the court. This is an action on a written lease for rent and dilapidation. The defendant craved oyer and time to plead. After oyer, but before an answer was filed, a jury was impanneled, and the plea of res judicata to the dilapidation was filed. The defendants had averdietand judgment, and the plaintiff appealed.
His counsel has urged that the plea ought not to have been received: improper evidence was received and properly rejected. The judge gave an erroneous charge, and judgment ought to have been given for the rent.
It has been urged that the plea came too late, as the cause was on trial, and th® issue was thereby changed. Code of Practice, 419, 420.
The appellee’s counsel has urged that the plea of res judicata is a peremptory exception, founded on law, and is pleadable at any time. lb. 345, 346.
The articles of the Code relied on by the appellant’s counsel, provides that the petition and answer may be amended after issue joined on leave; provided the plaintiff’s amendments does not alter the substance of the demand, and the defendant’s amendment is subjected to the same rule; and he may add new exceptions, not of the dilatory kind.
The articles filed by the appellee’s counsel, provide, that peremptory exceptions, founded on matter of law, may be pleaded in every stage of the action previous to the definitive judgment; and such exceptions are said to be these, which, without going into the merits of the cause, show that the plaintiff cannot maintain his action, because it is either prescribed, or destroyed, or extinguished.
The exception of res judicata, like that of r. J prescription, is one which does not go into r the merits of the cause, but shows that the plaintiff cannot maintain his action, because r • it is destroyed or extinguished by a judgment. Such an exception is timely at any stage of the. action before definitive judgment, and may therefore be pleaded after the trial has begun. It is no objection to it,
II. Evidence was given of an offer of surrendering possession, and the appellant complains that this was improperly permitted, as perfectly foreign to the issue, which was res judicata vcl non.
The appellee’s counsel has replied the 1 evidence was proper, as the plaintiff claimed damages for the defendant’s holding, even after the expiration of the lease.
As the defendant did not plead such an offer, without the plaintiff was prepared to contradict it, the evidence was improperly admitted.
III. Vaughn being out of the state, and process of attachment against Cooney having been issued (on his failing to attend on a subpoena) without success, this testimony taken down in the suit between the same parties, (in which the judgment relied on in the plea of res judicata was given,) was rejected.
The appellant’s counsel has referred us to the testimony of these witnesses, which comes up with the record, and contended it was
In a suit for holding over at the expiration of the lease, rent and dilapidation, many facts are proper evidence, which were proven on the claim of the first year’s rent. The testimony was given in the presence of both parties, each had the opportunity of cross examination. We think the testimony ought to have been admitted. This case does not differ from that of Hennen vs. Monroe, which was for contribution, on a general average,for books of the plaintiff’s in the defendant’s vessel; in which testimony in a former suit between the same parties for injury to the plaintiff’s books, through the defendant’s neglect was admitted.
IV. We have not examined the judge’s charge; the appellee’s counsel having shown that it was made contrary to the wishes of bis client, who alone excepted to it.
V. As the conclusion we have come to, on the third point renders it necessary to remand the case, we have not examined whether judgment ought to have been given for the second year’s rent.