POWELL vs. ASTEN

POWELL vs. ASTEN. [action on promissory note, by payee against maker.] 1. Error without injury in rulings on pleadings. — The wrongful sustaining of a demurrer to a special plea, when the defendant might have had the benefit of the same defense under his other jileas, is, at most, error without injury. - • 2. When exception is necessary. — The refusal of the circuit court, on sustaining a demurrer to a plea, to allow the defendant leave to plead over,-is not revisable on error, unless an excejition was reserved to it. Appeal from the Circuit Court of Payette. Tried before the Hon. Wm. S. Mudd. This action was brought by Robert Y. Asten, against Elizabeth. R. Powell, and was founded on the defendant’s promissory note for $425, dated the 10th September, 1857, and payable on the 25th December next after date. The defendant pleaded, in short by consent, non-assumpsit, want of consideration, and failure of consideration; and a special plea, which averred that the note was given for the amount found due from the defendant on an award, and stated the facts connected with the arbitration and award. The court below sustained a demurrer to this special plea, and refused leave to the defendant to plead over; and its rulings in these two particulars are here assigned as error. There is no bill of exceptions in the record. A. B. Clitherall, for appellant. T. Reavis, contra. [MAJORITY — R. W. WALKER, J.] R. W. WALKER, J. If it be conceded that the special plea, the demurrer to which was sustained, contained substantial matter of defense to the action, it is clear that the facts alleged might have been given in evidence under the other-pleas filed by the defendant. There was, therefore, no error of which the appellant can complain, in sustaining the demurrer. — Rodgers’ Adm’r v. Brazeale, 34 Ala. 512, and cases there cited. It is not shown that the defendant excepted to the action of the court, in refusing leave to plead over. He cannot, therefore, assign it as ei'ror in this court.