Both counts of the complain. Were in trespass, as was decided by .this court in the kindred case of Reason Williams v. Ivey, at the present term. The court erred, therefore, in- sustaining the demurrer for' mis-joinder of counts.
[2.] This error was not waived, by the plaintiff’s amending and proceeding to trial. Section 2255 of the'Code secures the right of assigning the judgment-on demurrer for error in such a case, unless the plaintiff has sustained no injury by the> judgment in consequence of the amendment. The decision in Stallings v. Newman, (26 Ala. 300,) was made in a suit commenced on the 8th December, 1851, as we find by consulting the original record; and it was, therefore, not governed by the Code'. - Besides, in that case, the pluintift probably sustained no injury from the ruling on the demurrer. Here,' we cannot say that the plaintiff lias not been injured. There are wrongs which might have been redressed under the second count, and yet could not have been proved under the first. The decision in Sheppard v. Shelton, 34 Ala. 652, was made upon the authority of Stallings v. Newman, our attention not having been called To the provision of the Code above stated; and *244we do not regard it as a correct statement of the law as it exists since the adoption of the Code.
[3.] If there was any error in theadmission of the answer of the witness Jordan to the third direct interrogatory, it was cured by the subsequent withdrawal of that evidence from the jury, and the explicit instruction of the court to the jury, that they must not regard it as evidence, and must not look to it as evidence for any purpose. — See the cases collected in Shepherd’s Digest, 568, § 88.
The question raised by the refusal of the charge asked, ■may not again arise, and we do not deem it necessary to pass upon it.
Reversed and remanded.