WILLIAMS vs. BETHANY, 7 La. 92

Bullard, J., delivered the opinion of the court. This case was before the court, on appeal, at a former term. 1. La. Reports, 315. The judgment in favor of the defendant was then reversed, and the cause, remanded for a new trial. One of the points then made by the plaintiff’s counsel was, that evidence to prove an offer, to surrender the rented land to the proprietor, was inadmissible, unless such offer was pleaded. In this position he was sustained by this conn.

On the day fixed for the new trial, in the District Court, J the defendant obtained leave to amend Ins answer, and, in his amended answer, sets up the exception, that after the expiration of the lease, he tendered possession of the premises to the plaintiff, and that he received the place, and retained possession by himself or his tenants. The filing of this exception was opposed by the plaintiff’s counsel, on the grounds, 1st, that it came too late, and 2dly, that it changed the issue between the parties.

A bill of exceptions was taken, and is now relied on as one of the grounds for reversing the judgment, rendered on the second trial. The exception was in our opinion peremptory, and might well be pleaded at that stage of the proceedings. The 420th

article of the Code of Practice, authorises an amendment of the answer after issue joined, by adding new exceptions, provided they be not of the dilatory kind. This is certainly not a dilatory exception. It goes to extinguish the action of the plaintiff. If the other party was taken by surprise, it would have justified a further delay, in procuring evidence to rebut, but he chose not to ask that indulgence, but went into trial. n"tg^¿| ted. on ‡*5 al*e-verdict is contra-i&mce^vhmTñ an examination of the evidence, it does not apwere * clearly wrong.

The appellant contends, that a new trial should have been granted, on the grounds stated by hipa in his motion, for that purpose; that the verdict was clearly contrary to law and evidence. On an examination of the evidence, which comes up m the record, we are not enabled to say, that the jury was so clearly wrong, as to authorise us to disturb the verdict. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.