The second assignment of error is that “the court erred in rendering judgment against the plaintiff for the costs incurred before the filing of the plea of bankruptcy, which is a plea puis darrein con-tinuam.ceH . ,
The defendant had previously interposed the plea of the general issue, a demurrer was interposed to his *670pl.ea of bankruptcy, which demurrer was overruled. This then left the two pleas still standing, to-wit, -the general issue, and the plea of bankruptcy, since the last continuance.
Tin1 appellant claims that the plaintiff should not have been, taxed with the entire1 costs, but that, under section 1835 of the code, the defendant should have been taxed with the costs which accrued previous to the filing of the plea of bankruptcy.
The section referred to provides that the defendant shall be taxed with the costs accruing previous .to the special plea only when the defendant “fails on the plea to the merits,” and the trouble with his contention is that the defendant did not fail on his plea to the merits, in this case, but, on the contrary, his plea to the merits being on file, and issue joined, and the plaintiff refusing to introduce any evidence to sustain his complaint, the plea of the general issue was necessarily sustained. In other words the reason and effect of section 1335, is that, where a plea since last continuance is interposed, if the evidence shows that, but for that special plea a judgment would have been rendered against the defendant he should pay the costs which accrued up to the time of the filing of said special plea, but, if, on the other hand, the evidence shows that there was merit in his plea of the general issue so1 that the plaintiff could not have recovered at any rate, then there is no' reason why the plaintiff should not pav all of the costs of the case. Andrews v. Hall, et al, 132 Ala. 320; Cross v. Esslinqer, 133 Ala. 409.
The case of Breitling v. Marx, 123 Ala. 222, is not ex-actlv similar to this one, but, in so far as the doctrine therein may conflict with the foregoing cases it was pronounced erroneous in Andrews v. Hall, supra. In the case of State ex rel Sanche v. Webb, et al, 110 Ala. 215; the plea is not set out in full. Any remarks in that case, as to the proper practice, the court does not follow, but holds that as to the facts and proceedings shown by the record in this case, the law is as hereinbefore indicated.
*671Tbe result is tliat, inasmuch, as, under the pleading, and absence of proof, the plaintiff had no cause of action, consequently could not he injured by the action of the court in overruling the demurrer to the special plea, it is unnecessary to go into a discussion as to that matter.
The judgment of the court is affirmed.
McClellan:, C. J, Tyson and Anderson, J. J., concurring.