Newsom v. Huey, 36 Ala. 37

Newsom v. Huey

36 Ala. 37 | Ala. | 1860

A. J. WALKER, O. J.

We cannot sustain the appellant’s assignment of error, that there was no specification of the grounds of demurrer to the appellant’s pleas. The record does not affirmatively fehow that the demurrer was defective in that particular, and we cannot presume such deficiency.

[2.] There was no error in the failure to visit the demurrer to the pleas upon the complaint. The visitation of demurrers upon the antecedent pleadings of the party demurring is, in effect,- abolished by the Code. — Henly v. Bush, 33 Ala. 636.

[3-4..] The first count of the complaint was for a breach of the warranty of the soundness of a slave. It was not a count upon “a promissory note, bond, or other contract, express or implied, for the payment of moneyand section 2129 of the Code does not require that a suit upon the cause of action set forth in that count should be “in the name of the party really interested.” — Henly v. Bush, 33 Ala. 636; Skinner v. Bedell’s Adm’r, 32 Ala. 44; Bryan v. Wilson, 27 Ala. 208. There was, therefore, no error in sustaining the demurrer to the defendant’s three special pleas, which went to the entire action, ánd contained no matter of defense to the first count.

[5.] After the testimony had been closed, and the argu*39mont of the cause had commenced, the appellant could not claim, as a right, that the testimony of interested witnesses, who were examined without objection, should be excluded. — Borland v. Mayo, 8 Ala. 104 ; Prosser v. Henderson, 11 Ala. 484.

[6.] If any of the testimony objected to by the appellant was inadmissible, the objection was a general one, to the admission of it in connection with other evidence which was legal.

The judgment of the court below is affirmed.