The opinion
ORMOND, J.
The. same questions are presented upon the demurrer to the pleas, and upon the bill of exceptions; we shall, therefore, decide upon the legal effect of the facts, without reference to the frame of the pleas.
The facts set out in the third plea, constitute no defence to the action. The direction to the sheriff to stay the execution, was without consideration, and might have- been countermanded at any time. It did not, therefore, interpose any obstacle to the *574 payment of the debt by the surety, when he could have proceeded against his principal.
Wé understand the defence set up in the fourth plea to be, that after a judgment by Patterson as assignee of Wilson, the payee, against D. Sawyer, the principal, the note was assigned by Wilson to the defendant in error, who again put the note in suit against the plaintiff in error, the.other party to. the note not suecl in the first action. In Brown v. Foster, [ 3 Ala. 284 ,] wo held, that by the judgment in favor of the first assignee, the note had lost its negotiable quality, and could not be again transferred, so as to enable the transferee to sue in his own name. That decision is decisive, of the present case, and the judgment must, therefore, be reversed, and the cause will be remanded, if desired.