¶1delivered the opinion of the court.
¶2In this case our attention is drawn to a bill of exceptions, from which it appears, that on the trial of the case, the defendant’s counsel having introduced the record of a suit by Tuthill, one of the plaintiffs against his creditors, by which it appeared that he had made a surrender of his property as an insolvent debtor, and that a syndic had been appointed, moved the court to instruct the jury, that no verdict could be rendered by them against the defendant, on the ground, that the suit should have been instituted by the syndic jointly with the other plaintiff. The court refused to give that charge, but on the contrary, instructed the jury that the suit could be maintained, because the syndic by an exparte proceeding, had made himself a party to the suit on motion.
¶3We are of opinion the court did not err, although the plaintiff who had made a surrender, was without capacity to sue in relation to a debt due him before the surrender, yet his syndic came in and made himself a party, without any objection on the part of the defendant. No exception was made to the capacity of the plaintiff; on the contrary the answer goes to the merits, and sets up a demand in re-convention. The objection came too late, after the jury had been sworn to try the issue on the merits of the case.
¶4On the merits, an attentive examination of the evidence, has failed to convince us that the verdict was erroneous.
¶5It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.