47 Ala. 335 | Ala. | 1872
No notice will be taken of the special pleas and the demurrers thereto, for the reason that the same questions arise upon the plea of the general issue pleaded with leave as above shown.- No question can arise on the evidence in the cause that may Dot be determined on that plea. And as all the evidence introduced on the trial is set out in the bill of exceptions and several charges asked upon them, which involve a consideration of the same matters as are pleaded in the special pleas, which were overturned by the demurrers, the decision must be the same, whether made in the one or the other mode. And if the allowance of the demurrers was error at all, it was error without injury, which is not sufficient to justify a reversal for that cause. — Powell v. Asten, 36 Ala. 140; Rodgers, Adm’r, v. Brazeale, 34 Ala. 512; Kannady v. Lambert, 37 Ala. 57; Lawson v. Hicks, 38 Ala. 279.
Then, passing by the demurrers to the main question in the litigation, I think there was no error committed in the proceedings in the court below as shown by the bill of exceptions, which would entitle the appellant to a reversal,notwithstanding the ingenious and able argument of the learned counsel for the appellant in this court. It is true, that an assignor or an indorser of a note or bill is by the law-merchant regarded to some extent as the surety of the maker, who is to be regarded as the principal debtor. And if the holder of the note or bill either discharge or improperly suspend, his remedy against the maker, the assignors and indorsers will be discharged. This is a- general
The objection that the verdict in the court below was for a larger sum than was justified by the claim set up in the complaint, and that the judgment follows the verdict, can not be made for the first time in this court. It is such an error, if it exists, that might have been corrected in the court below, and its correction ought first to have been sought there. — Evans v. Bridges, 4 Port. 348; S. C., Smith Cond. 221; Moore v. Coolidge, 1 Port. 280; S. C., Smith Cond. 477.
The judgment of the court below is affirmed.