The plaintiff is appellant from a judgment of non-suit. She sues as administratrix of her deceased husband. Her capacity was deriied, and she failed to make any proof of it. She cannot c.omplain of a judgment which is the legal consequence of her own negligence, or that of her counsel.

Judgment affirmed.

Same Case — On an Application por a Re-hearing.

The plaintiff’s cpnpsel applies for a re-hearing on the ground that he was not bound to notice the exception to the want of capacity of the plaintiff to sue, because with it was filed a peremptory exception, and an answer to the-iperits; and he insists on *109a literal application, of the twenty-third section of the act of 1839.

On the first day of the term to which the process in this case was returnable, the defendant appeared, and on the same page of a sheet of paper, he pleaded, 1st. Prescription; 2d. The want of the capacity of the plaintiff to sue ; 3d. A general denial. On the trial, the counsel for plaintiff did not prove that she was administratrix, and on that and other grounds, a non-suit was entered. He strenuously urges he was not hound to notice the exception. ' We think he was. It was filed before a judgment by default was taken, and no issue was joined previous to the exception being presented. We think the latter clause of the section only prevents dilatory exceptions being filed, after a judgment by default; hut if filed previously, we think they ought to he noticed, although followed hy an answer to the merits.

Re-hearing refused.