HEAD, J.
— The first assignment of error brings for review, the ruling of the court, on the demurrer to the first plea of defendant. The plea avers, in substance, that defendant signed the note sued on as surety for B. B. Edwards, and that on, or about February 1, 1887, he requested and directed J". W. Edwards, the payee and holder of the note at that time to bring suit thereon and to collect the same by [652]*652legal process. It also avers, that R. B. Edwards was, at the time of such request and direction, and long afterwards, solvent, and had a sufficiency of personal property in this State, from which the amount of the note could have been easily collected by legal process; but, that J. W. Edwards failed to bring suit, and permitted R. B. Edwards to dispose of his property, and remove the same out of this State. Several grounds of demurrer were assigned, the first, the only one sustained by the court, being that the plea fails to allege that the direction to sue was in writing.
This ground of demurrer, and the ruling thereon, were evidently based on section 3153 of the Code, which provides that a surety upon any contract for the payment of -money may require the creditor, by notice- in writing, to bring suit thereon against the principal debtor; and if suit is not brought to the first court to which it can be brought after the receipt of such notice, and prosecuted with diligence, the surety is discharged from all liability. The original act, which was condensed and incorporated in the Code of 1852 as section 2617, and transferred in the same phraseology in the succeeding Codes, was enacted in 1821. — Clay’s Digest, 532. In Bruce v. Edwards, 1 Stew. 11, which was decided in 1827, it was ruled, that the statute did not abrogate the common-law rule, but was merely cumulative. The rule at common-law was, that notice to the holder of the note, though not in writing, and request to sue the principal, operated to discharge the surety, when by the negligence of the creditor, the means of recovering the debt from the principal had been lost, or damage accrued to the surety, and is a good plea in bar of an action on the note against the surety.— Goodman v. Griffin, 3 Stew. 160; Pickens v. Yarbrough, 26 Ala. 417.
It is, however, insisted that, there being other grounds of demurrer which should have been sustained, sustaining the first ground, if erroneous, is error without ¿injury. The general rule is, that error in sustaining a demurrer to a special plea will operate to reverse, unless it affirmatively appears, that injury did not accrue to the defendant. Prétermitting a decision, whether the other specified objections to the plea are well taken, it suffices, that the sufficiency of the other grounds of demurrer, is not, and can not be brought for revision by appellant, and having been overruled by the Circuit Court, they must be regarded, on this appeal, as insufficient. The doctrine of error without injury does not apply in such case. The facts averred in the plea, if established, constitute a good and available defense [653]*653to the action. The first ground of demurrer was improperly sustained.
By section 2765 of the Code, the exception to the general rule of competency, which prohibited a witness from testifying to any transaction with, or statement by a deceased person, was limited to the parties to the suit, and their beneficiaries. — Morris v. Birmingham Nat. Bank, 93 Ala. 511; s. c., 9 So. Rep. 606: The section was amended by the act of February 10, 1891, by inserting, in lieu of the words “neither party,” the words, “no person having a pecuniary interest in the result of the suit.” The amended act reads as follows: “In civil suits and proceedings, there must be no exclusion of any witness because he is a party, or interested in the issue to be tried, except, that no person having a pecuniary interest in the result of the suit, shall be allowed to testify against the party to whom his interest is opposed, as to any transaction with, or statement by the deceased person whose estate is interested in the result of the suit or proceedings, or when such deceased person, at the time of said transaction or statement, acted in any representative, or fiduciary relation whatsoever, to the party against whom such testimony is sought to be introduced,” unless, called to testify thereto, by the party to whom such interest is opposed, or unless, if the deceased person acted in such representative or fiduciary relation, the testimony as to a transaction with or statement by him is introduced by the party whose interest is opposed to that of the witness. — Act’s 1890-91,557. Under the amendatory act, parties are allowed to testify as to transactions with, or statements by a deceased person, if they have no pecuniary interest in the result of the suit. In order to come within the exceptive prohibition, three conditions must co-exist: first, the witness must have a pecuniary interest in the result of the suit; second, his interest must be opposed to the party against whom he is called to testify; and third, the estate of the deceased person must be interested in the result of the suit, or he must have acted in a rejmesentative or fiduciary relation to the party against whom the testimony is sought to be introduced.
It may be conceded, that the liability of B. B. Edwards, the principal, to the defendant as his surety, for the costs of this suit, if it goes against the latter, constituted a pecuniary interest in its result. Also: as he would not be liable to the plaintiff for the costs incurred by her, if the suit should result in favor of the surety, it may be plausibly contended, that the pecuniary interest of the witness is opposed to the plaintiff; but whether interest as to the costs only, the in[654]*654terest of the witness being otherwise equally balanced, is in the meaning and intention of the statute such pecuniary interest in the result of the suit, as will exclude his testimony as to any transaction with, or statement by the decedent, we do not decide; and pass the question with the remark, that as a general rule an exception or proviso takes no case out of the enacting clause, which does not fairly fall within its terms. If conceded, the enquiry remains, whether the estate of J. W. Edwards is interested in the result of the suit. In Ala. Gold Life Ins. Co. v. Sledge, 62 Ala. 566, it is said: “A case can not arise for the application of the present exception, unless it involves a direct, immediate conflict of interest between the dead and the living. It is only when such conflict of interest exists, that it. can be said, the estate of the deceased person is interested in the result of the suit.” This construction of the language of the statute, in this respect, has been uniformly adhered to. — Dismukes v. Tolson, 67 Ala. 386.
The plaintiff does not sue as the personal representative of the estate of J. W. Edwards, but as his widow. True, the original complaint avers that the note is the property of plaintiff, but the amendment to the complaint also avers that it was the property of her husband’s estate. It is manifest, from these averments, that she claims title to the note, and the right to maintain the action by virtue of her right to an exemption, on the ground that no administration has been granted, and no personal property set apart to the widow or minor children as exempt. There being neither averment nor proof that a selection of the note as exempt was made in any of the modes prescribed by the statute, the title or right of possession was not vested in her. — Tucker v. Henderson, 63 Ala. 280.
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HEAD, J.
— The first assignment of error brings for review, the ruling of the court, on the demurrer to the first plea of defendant. The plea avers, in substance, that defendant signed the note sued on as surety for B. B. Edwards, and that on, or about February 1, 1887, he requested and directed J". W. Edwards, the payee and holder of the note at that time to bring suit thereon and to collect the same by [652]*652legal process. It also avers, that R. B. Edwards was, at the time of such request and direction, and long afterwards, solvent, and had a sufficiency of personal property in this State, from which the amount of the note could have been easily collected by legal process; but, that J. W. Edwards failed to bring suit, and permitted R. B. Edwards to dispose of his property, and remove the same out of this State. Several grounds of demurrer were assigned, the first, the only one sustained by the court, being that the plea fails to allege that the direction to sue was in writing.
This ground of demurrer, and the ruling thereon, were evidently based on section 3153 of the Code, which provides that a surety upon any contract for the payment of -money may require the creditor, by notice- in writing, to bring suit thereon against the principal debtor; and if suit is not brought to the first court to which it can be brought after the receipt of such notice, and prosecuted with diligence, the surety is discharged from all liability. The original act, which was condensed and incorporated in the Code of 1852 as section 2617, and transferred in the same phraseology in the succeeding Codes, was enacted in 1821. — Clay’s Digest, 532. In Bruce v. Edwards, 1 Stew. 11, which was decided in 1827, it was ruled, that the statute did not abrogate the common-law rule, but was merely cumulative. The rule at common-law was, that notice to the holder of the note, though not in writing, and request to sue the principal, operated to discharge the surety, when by the negligence of the creditor, the means of recovering the debt from the principal had been lost, or damage accrued to the surety, and is a good plea in bar of an action on the note against the surety.— Goodman v. Griffin, 3 Stew. 160; Pickens v. Yarbrough, 26 Ala. 417.
It is, however, insisted that, there being other grounds of demurrer which should have been sustained, sustaining the first ground, if erroneous, is error without ¿injury. The general rule is, that error in sustaining a demurrer to a special plea will operate to reverse, unless it affirmatively appears, that injury did not accrue to the defendant. Prétermitting a decision, whether the other specified objections to the plea are well taken, it suffices, that the sufficiency of the other grounds of demurrer, is not, and can not be brought for revision by appellant, and having been overruled by the Circuit Court, they must be regarded, on this appeal, as insufficient. The doctrine of error without injury does not apply in such case. The facts averred in the plea, if established, constitute a good and available defense [653]*653to the action. The first ground of demurrer was improperly sustained.
By section 2765 of the Code, the exception to the general rule of competency, which prohibited a witness from testifying to any transaction with, or statement by a deceased person, was limited to the parties to the suit, and their beneficiaries. — Morris v. Birmingham Nat. Bank, 93 Ala. 511; s. c., 9 So. Rep. 606: The section was amended by the act of February 10, 1891, by inserting, in lieu of the words “neither party,” the words, “no person having a pecuniary interest in the result of the suit.” The amended act reads as follows: “In civil suits and proceedings, there must be no exclusion of any witness because he is a party, or interested in the issue to be tried, except, that no person having a pecuniary interest in the result of the suit, shall be allowed to testify against the party to whom his interest is opposed, as to any transaction with, or statement by the deceased person whose estate is interested in the result of the suit or proceedings, or when such deceased person, at the time of said transaction or statement, acted in any representative, or fiduciary relation whatsoever, to the party against whom such testimony is sought to be introduced,” unless, called to testify thereto, by the party to whom such interest is opposed, or unless, if the deceased person acted in such representative or fiduciary relation, the testimony as to a transaction with or statement by him is introduced by the party whose interest is opposed to that of the witness. — Act’s 1890-91,557. Under the amendatory act, parties are allowed to testify as to transactions with, or statements by a deceased person, if they have no pecuniary interest in the result of the suit. In order to come within the exceptive prohibition, three conditions must co-exist: first, the witness must have a pecuniary interest in the result of the suit; second, his interest must be opposed to the party against whom he is called to testify; and third, the estate of the deceased person must be interested in the result of the suit, or he must have acted in a rejmesentative or fiduciary relation to the party against whom the testimony is sought to be introduced.
It may be conceded, that the liability of B. B. Edwards, the principal, to the defendant as his surety, for the costs of this suit, if it goes against the latter, constituted a pecuniary interest in its result. Also: as he would not be liable to the plaintiff for the costs incurred by her, if the suit should result in favor of the surety, it may be plausibly contended, that the pecuniary interest of the witness is opposed to the plaintiff; but whether interest as to the costs only, the in[654]*654terest of the witness being otherwise equally balanced, is in the meaning and intention of the statute such pecuniary interest in the result of the suit, as will exclude his testimony as to any transaction with, or statement by the decedent, we do not decide; and pass the question with the remark, that as a general rule an exception or proviso takes no case out of the enacting clause, which does not fairly fall within its terms. If conceded, the enquiry remains, whether the estate of J. W. Edwards is interested in the result of the suit. In Ala. Gold Life Ins. Co. v. Sledge, 62 Ala. 566, it is said: “A case can not arise for the application of the present exception, unless it involves a direct, immediate conflict of interest between the dead and the living. It is only when such conflict of interest exists, that it. can be said, the estate of the deceased person is interested in the result of the suit.” This construction of the language of the statute, in this respect, has been uniformly adhered to. — Dismukes v. Tolson, 67 Ala. 386.
The plaintiff does not sue as the personal representative of the estate of J. W. Edwards, but as his widow. True, the original complaint avers that the note is the property of plaintiff, but the amendment to the complaint also avers that it was the property of her husband’s estate. It is manifest, from these averments, that she claims title to the note, and the right to maintain the action by virtue of her right to an exemption, on the ground that no administration has been granted, and no personal property set apart to the widow or minor children as exempt. There being neither averment nor proof that a selection of the note as exempt was made in any of the modes prescribed by the statute, the title or right of possession was not vested in her. — Tucker v. Henderson, 63 Ala. 280. But, the question of ownership, or beneficial interest not being raised by demurrer or plea, the character in which plaintiff sues, and the right claimed, become important only in determining whether the estate of J. W. Edwards, her husband, is interested, in the legal sense, in the result of this suit.
As the only opposition or interest is in regard to the disposition of the costs, and as in no event his estate can be made liable therefor, there is no such direct and immediate conflict of interest between the witness and decedent, that his estate can be said to be interested in the result of the suit. The testimony of the witness can not have effect to diminish the rights of his estate. The interests of the plaintiff as his widow only are involved, and whatever may be the result, his estate remains in fact undiminished. [655]*655Kumpe v. Coons, 63 Ala. 448. A judgment for or against tlie plaintiff would be no bar to a subsequent action by the rightful administrator. The interests of his estate will not be affected though the plaintiff may not recover. The third condition mentioned above not existing, B. B. Edwards, the principal, is competent to testify in this suit to transactions with or statements by the deceased in regard to the note.
It is well settled that a surety on a contract for the payment of money is discharged from liability by any extension of the time - of payment granted to the principal by the creditor on a valuable consideration, without the consent of the surety, whereby the creditor’s right to sue is disabled for any period of time however short. — Mo. & Montg. R’way Co. v. Brewer, 76 Ala. 135. Merely giving further time gratuitously without consent of the surety will not discharge the latter. There must be a valid agreement to extend, precluding the creditor from suing as soon as he had the right to sue according to the terms of the original contract; and there can be no valid agreement, unless supported by a legal and valuable consideration. — Cox v. Mo. & Girard R. R. Co., 37 Ala. 320. Applying these principles, the first and second charges requested by defendant are defective. They do not predicate the discharge of the defendant on an extension of time by a valid agreement; and besides they submit to the jury a legal question. The same observation applies to the fourth charge.
For the errors mentioned, the judgment is reversed.
This opinion was prepared by the late Justice Clopton, and adopted by the court.
Beversed and remanded.