If it be conceded that the special plea, the demurrer to which was sustained, contained substantial matter of defense to the action, it is clear that the facts alleged might have been given in evidence under the other-pleas filed by the defendant. There was, therefore, no error of which the appellant can complain, in sustaining the demurrer. — Rodgers’ Adm’r v. Brazeale, 34 Ala. 512, and cases there cited.

2. It is not shown that the defendant excepted to the action of the court, in refusing leave to plead over. He cannot, therefore, assign it as ei'ror in this court.