I have carefully examined the case presented by the record, and cannot perceive any distinction between it and the case of Paulling v. Marshall & Wife, 47 Ala. 270. In this latter case it was said : “ Where the defendant demurs to the plaintiff’s complaint, and it is sustained by the court, and the plaintiff excepts to the decision of the court, and thereupon suffers a nonsuit, such a nonsuit must be regarded as a voluntary, and not as a necessary nonsuit; and such a nonsuit will not be set aside on appeal, under section 2759 of the Revised Code.” This is precisely the present case. The nonsuit will not be set aside in such a case. Darden v. James. The judgment of the court below is affirmed.