On Application for Rehearing.
The other members of the court while still adhering to their position in respect to striking the bill of exception's, however, recede’ from their conclusion as to a reversal of the judgment in the cause. While conceding there was error in the ruling® of the trial court in sustaining the demurrer to the special plea, they now hold, that it was error without injury. They predicate *169their conclusion in this respect upon the proposition that the facts alleged in the plea could have been introduced in evidence, not that they were, under the plea' of the general issue — a. proposition of law which is not entiiely flee from doubt. They rely, in support of their conclusion upon Powell v. Asten, 36 Ala. 140; Rogers v. Brazeale, 34 Ala. 512; Stein v. Ashby, 24 Ala. 521 and Owings v. Binford, 80 Ala. 421. It must be conceded that the two cases first named support their holding. The opinion in each of them are by the same judge and show that he gave but little consideration to the question. Indeed the cases lie cites to support his views do not do so. In each of them the facts stated in the plea to which a demurrer was sustained were after-wards received in evidence upon the trial. But the last two do not, except in a dictum■ which, of 'course, is not authority. The report of these cases show that the defendant in each of them actually had the benefit of all evidence under other pleas to which he would have been entitled, had the pleas to which demurrers were sustained, remained in the record. There was, therefore, no necessity for this court in reviewing those cases to say more than that the error was cured by allowing the defendant, to introduce the facts alleged in his pleas in evidence under another plea — a well recognized principle which has often been invoked and applied by this court. The writer’s position is, error having confessedly been shown in this case, the fact must affirmatively appear from the record that defendants under their plea of the general issue, had the full benefit of the facts alleged in their special plea to which a demurrer was improperly sustained. And this- fact not appearing from the record, the bill of exceptions having been stricken, the presumption of injury must prevail. This principle was applied and enforced in the following cases, in which precisely the point here under consideration Avas involved: Lambie v. The Sloss Iron & Steel Co., 118 Ala. 427; Mitchell v. Moore, 73 Ala. 542; Graham v. Woodall, 86 Ala. 313; Rice v. Drennen, 75 Ala. 335; Rigby v. Norwood, 34 Ala. 129; Fails v. Weissinger, 11 Ala. 801; Pinkston v. Green, 9 Ala. 19.
In Fails v. Weissinger, supra, it was said: “It is, hcAvever, contended for defendant- in error, that al*170though the demurrer to tlie pleas should not have been sustained, j^et as the defendants below might have proved the same fact which they set up under the other pleas, they have not been prejudiced by the judgment on demurrer; and, therefore, cannot complain of the decision against them. All the pleas were affirmative, and it devolved upon defendants after the plaintiff had produced the bond and shown a breach, to sustain a defense by proof. Now although it may be that the plea of performance would have tolerated the admission of all the facts alleged in the several pleas; yet we must intend under the circumstances of the case that the demurrers were sustained, “because it was supposed that the pleas adjudged bad, did not present an available defense; that the court would not have admitted evidence of the fact they alleged. When a demurrer to a. plea has been improperly sustained, if it appears tjjiat the defendant has had the benefit he could have derived from it, upon the trial of issues on other equivalent pleas, he cannot insist upon the error; as no real injury was done him.”
In Mitcham v. Moore, supra, Brickell, C. J., speaking for the court, said: “It is insisted for the appellee, that although the demurrers to the special pleas were sustained erroneously, the error is without injury, as the appellants could have had the benefit of the facts stated in them, under the general issue upon which the trial was had. The rule is quite general, that if a demurrer to a special plea is erroneously sustained, the error is without injury and not a cause of reversal, if it appears that the defendant has ‘had, under the general issue, the full benefit which could have’been'derived from the special plea. But that fact must affirmatively appear from the record, and if it does not, the presumption of injury, arising from error 'dearly shown, must prevail. * * * The fact does not now appear; the bill of exceptions states all the evidence and none ■was given of the facts stated in these pleas, nor is it probable that such evidence would have been admitted, if offered.”
In Lambie v. The Sloss Iron & Steel Co., supra, the same learned judge used this language: “When -a dé*171miuTer is erroneously sustained to a special count, the presumption of injury arising from error must- prevail, though it he true the plaintiff under the common counts could have given evidence of all matters, which would have been available under the special count, unless it appears that such evidence was introduced. The fact of the introduction of such evidence, does not affirmatively appear, nor is it probable that it would have been received if offered.”
In Rice v. Drennen, supra, Sommerville, J., speaking, slid: “We are unable to perceive upon what ground the first plea was adjudged bad. * * * The court erred in pronouncing it bad, in whatever form the objection to it may have been presented. It is contended that this action of the court must be regarded as error without injury as the case seems afterwards to have been tried upon its general merits. It does not appeal’, however, that the contestants offered any evidence in the cause whatever and we cannot know that they were not deterred from doing so by this erroneous ruling of the court. The]7 had the right to suppose that, inasmuch as the plea had been pronounced bad, all evidence offered in support of it would have been excluded by the court on objection taken to it by the petitioner.”
Excerpts from other cases cited to support my contention might be quoted, but these will suffice to show that no presumption can be indulged to overcome the presumption of injury after error is shown. And unless we indulge the presumption that the trial court would stultify itself by receiving evidence to establish a state of facts, as a defense, after having ruled that the same state of facts alleged in a plea constituted no defense, we are forced logically to the conclusion which the writer contends for is the law. And this cannot be done unless we abrogate the rule laid down in the cases cited above and quoted from, which has obtained in this State since the establishment of this court. Before concluding I will cite the case of Troy Fertilizer Co. v. The State of Alabama, decided at present term, which fully sustains my contention. In that case, notwithstanding the facts stated in the special pleas, stricken on motion, were received in evidence, this court reversed *172the judgment, because of the. error in striking them, although the facts alleged in them were confessedly no defense, to the action. It- is true, it is said that the facts stated in the pleas could not have been introduced under the general issue, but the record showed that they were received in evidence without objection. The principle undelying the opinion is, error having been shown, it could not be said that no injury resulted to the defendant — that, it- had all the benefit from the evidence, that it would have been entitled to had the pleas not been stricken. I was, at first., inclined to think that the opinion was wrong, but I have become convinced of its correctness. Although the point seems technical, yet, to hold otherwise would be to emasculate the statute requiring special demurrers and to infringe upon the rule which I am so strenuously insisting upon upholding in this case.