land (describing it), the property of plaintiff -168 red oak cross-ties and 170 white oak cross-ties, the property of plaintiff. Are these counts, 4 and 5, in form actions ex delicto? Has the plaintiff in these counts waived the tort, the trespass, and claimed for the price received by the defendant for the sale of them?

"Inasmuch as assumpsit lies only upon a promise, express or implied, and not to recover damages for torts or trespasses, a mere conversion of the goods of the plaintiff, without any sale of them, will not support the action. The doctrine of waiving a tort and bringing assumpsit is confined to cases where the defendant has disposed of the plaintiff's property, and received either money, or some article or thing as money. Pike v. Bright, 29 Ala. 336; Crow v. Boyd's Adm'rs, 17 Ala. 51; Strother's Adm'r v. Butler, 17 Ala. 733. If the property has been sold, it makes no difference whether the price is received in money, or in a chattel at an estimated price, for money. Arins v. Ashley, 4 Pick. 71; Mason v. Waite, 17 Mass. 560; Stewart v. Conner, 9 Ala. 813; Cameron v. Clarke, 11 Ala. 259."

[2] The plaintiff cannot maintain assumpsit for the cutting and removing of his timber from his land by the defendant, without averring a sale thereof by the defendant and the receipt of money or chattels at an estimated price in money by the defendant therefor, and without claiming the money so received by the defendant as the price or value of the property of plaintiff. Howton v. Mathias, 197 Ala. 458, 466, headnote 11, 73 South. 92; Calhoun County v. A. M. C. Co., 152 Ala. 607, 44 South. 876; and authorities, supra.

In counts 4 and 5 the plaintiff does not aver the timber has been cut, removed, and sold for money by the defendant, and sue for the price or money so received by the defendant. In neither count does he waive the tort, the trespass, aver a sale of the timber by defendant, and sue in assumpsit for the money received by the defendant for it from the sale. In count 4 he sues for the value of the timber cut and removed by defendant, and in count 5 he sues for damages for the cutting and removing of the timber, and in neither count does he aver a sale of the timber by the defendant after its removal, and sue in assumpsit for the money received for it by the defendant. So, from the facts alleged in counts 4 and 5, we must hold the plaintiff thereby is attempting in each count to recover in the form of an action ex delicto, and not in the form of an action ex contractu. Whilden v. M. & P. Nat. Bk., 64 Ala. 1, headnote 2, 3, 38 Am. Rep. 1; Lee v. Raiford, 171 Ala. 124, 54 South. 543; and authorities, supra.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.

JEFFERSON COUNTY v. PARKER. (6 Div. 991.)

2. Forcible entry and detainer 4-Entry by consent or under contract not forcible.

Under Code 1907, § 4262, an entry by consent or contractual agreement is not forcible entry, actual or constructive, and does not give rise to forcible entry and detainer. 3. Landlord and tenant

118(1)-Nature of tenancy of warden occupying house in a convict camp stated.

Defendant occupying, as warden, house in a county convict camp, held tenant at will by implication, such tenancy being presumptively terminated ipso facto by termination of employment, whereupon it would become tenancy by sufférance; nor can such occupation be deemed that of servant merely, leaving posses

sion in master.

4. Forcible entry and detainer 4-County not entitled to recover against former warden, allowed to occupy house on convict camp.

County allowing warden to occupy house in a convict camp held not entitled to recover as for forcible entry and unlawful detainer.

Where action for forcible entry and detainer has been tried and treated throughout as though it contained a count for unlawful detainer, it will be so considered on appeal.

6. Forcible entry and detainer 29 (2)—Evidence of demands and promise to vacate held improperly excluded.

In action for forcible entry and unlawful detainer by county to recover possession of house from former warden of convict camp, it was error to exclude testimony of demands for possession by two of plaintiff's agents and defendant's statement that he would give same as soon as he could.

7. Landlord and tenant ☺120(2)—Warden occupying house in convict camp bound to vacate on reasonable notice, and discharge sufficient notice.

Warden of convict camp occupying house therein as tenant at will by implication is bound to vacate on reasonable notice, and his discharge from employment was sufficient notice. 8. Landlord and tenant 120(1)-Warden Occupying house in convict camp entitled to reasonable time to vacate after notice.

Warden of convict camp, occupying employer's house as tenant at will, is entitled to reasonable time after notice to vacate; what constitutes same being question of law variable according to circumstances. 9. Landlord and tenant

120(2)-Reasonable time after demand for removal held allowed before suit.

Where warden occupying employer's house at convict camp was discharged on September 15th, possession of house demanded on October 15th, and suit filed on November 1st, reasonable time to permit removal had elapsed; 15 days being deemed sufficient.

10. Forcible entry and detainer 11 (3)-De

mand sufficient if made before suit. Demand for possession in case of forcible entry and detainer is sufficient if made any time before suit.

W. K. Terry, of Birmingham, for appellant.

Benton & Bentley, of Bessemer, for appel

lee.

SOMERVILLE, J. [1, 2] In this form of action-forcible entry and detainer-the plaintiff cannot recover unless he shows that the defendant has intruded upon, his prior possession, either forcibly or by threats, or else peaceably but without the plaintiff's permission or consent. Code, § 4262; Self, v. Comer, 166 Ala. 68, 52 South, 336; Victor Realty Co. v. Argumanian, 172 Ala. 108, 55 South. 621; Knowles v. Ogletree, 96 Ala. 555, 12 South. 397; 26 Corp. Jur. 830 [§ 66]. Under the statutory prescription, an entry by consent or under contractual agreement is not a forcible entry, actual or constructive, and does not give rise to the action of forcible entry and detainer.

Plaintiff's testimony tends to show that it had established its county convict camp No. Iron & Land Company; that it was in pos4 on land belonging to the Bessemer Coal, session of the land thus occupied under an agreement with said Bessemer Company of indefinite duration; that the occupied area included the house and lot in suit; and that defendant was put in possession of said house and lot by plaintiff, in connection with, and by reason of, defendant's employment by plaintiff as warden of the camp, in order that defendant and his family might reside in the camp while so employed.

[3] Such an occupation created, we think, a tenancy at will by implication. Rutledge

admitted.

In action by county against discharged warden occupying house in convict camp, evidence of title being irrelevant, proof of lease to defendant from alleged owner and lessor to plaintiff held improperly admitted under Code 1907, § 4271.

[4] Our view of the case is that, if the jury believed the evidence offered by plaintiff as to the manner of defendant's entry, they could not find for plaintiff as for a forcible entry and detainer. If, however, they believed plaintiff's evidence as to plaintiff's prior possession of these premises, and at the same time believed defendant's evidence as to the manner and intention of his entry,

Action of forcible entry and unlawful de tainer by Jefferson County against Monroe

[6] The trial court erred in refusing to allow plaintiff to show, by its witness Harry, that Harry had authority to demand possession of the premises from defendant, after defendant's employment as warden was terminated; that Harry in fact made such a demand; and that on that occasion defendant told him that he would give the premises up to him as soon as he could get out and get a home. There was error, also, in excluding the testimony of plaintiff's witness Wheeler that he demanded possession from defendant, and that defendant told him that he would get out "just as soon as he could.” [7] If defendant occupied the premises as plaintiff's tenant at will by implication, he was bound to vacate on reasonable notice to do so, and his discharge from employment at the camp was. of course, a sufficient notice in that behalf, since the tenancy at will was thereby terminated.

[8] After such notice defendant was entitled to a reasonable time in which to vacate the premises. Rutledge v. White, 206 Ala. 329, 89 South. 599; Jones v. Temple, 87 Va. 210, 12 S. E. 404, 24 Am. St. Rep. 649; 16 R. C. L. 612, § 92. What is a reasonable time in such a case, the facts being undisputed, is a question of law, though variable according to the circumstances of the particular case. Jones v. Temple, supra. If the premises be a dwelling house, the tenant must be allowed a sufficient time to enable him to remove his family, his furniture, and other property.

[9, 10] Defendant was discharged on Sep tember 15, 1921. Possession of the premises was expressly demanded of him on October 15, 1921; and this suit was filed on November 1, 1921. We hold that more than a reasonable time had elapsed between the termination of defendant's tenancy at will-if there was such a tenancy-and plaintiff's demand for possession; and also, if it be material, that 15 days was ample time to permit of defendant's removal. These holdings apply, of course, only to the issue of unlawful detainer, predicated upon the relation of landlord and tenant, as shown by plaintiff's testimony. On the theory of a forcible entry and detainer, demand for possession was timely if made at any time be fore suit.

[11] The question of title being irrelevant to the issues, defendant should not have been

[12] Several of the instructions given to the jury at the instance of defendant require that the jury be convinced of certain facts by a preponderance of the evidence, or that they must believe certain facts, before they can find for plaintiff.

Reasonable conviction, satisfaction, or belief, is all that is required, and all instructions of this sort should be framed accordingly.

For the errors noted above, the judgment will be reversed, and the cause remanded for another trial.

Reversed and remanded.

ANDERSON, C. J., and THOMAS and MILLER, JJ., concur.

HILL v. HILL. (6 Div. 980.)

(Supreme Court of Alabama. May 15, 1924.) 1. Appeal and error 76(2)-Opinion in decree stating relationship not followed by or. der or decree not final, supporting appeal.

Opinion in decree that proof does not show that partnership existed between parties, but that they were engaged in joint adventure, which was not followed by order or decree that complainant was entitled to relief, or adjudicating fact referred to, held not final decree, supporting appeal.

2. Judgment 216-Decree ordering hearing on question of existence of relation held not subject to exception that status had been determined.

Where former decree, expressing opinion of court as to relationship of parties, was not final decree supporting appeal, subsequent decree ordering hearing on question of existence of partnership or joint adventure on oral testimony was within court's discretion, and not subject to exception that status had previously

been determined.

3. Appeal and error 1010(1)—Finding of neither partnership nor joint adventure not disturbed in view of evidence.

Court's finding that neither partnership nor joint adventure existed between parties, under evidence, not disturbed on appeal.

4. Witnesses 270(2)-Refusing cross-question amounting to self-serving declaration of irrelevant matter not error.

Where issue was whether partnership excross-examination as to whether his expulsion isted, complainant's question to defendant on from business was not due to resentment over rebuke of defendant's conduct with woman held improper as self-serving declaration by complainant of irrelevant matter.

Bill in equity by O. C. Hill against Mose Hill. From a decree dismissing the bill, complainant appeals. Affirmed.

The original bill in this case was filed by the complainant, O. C. Hill, against his father, Mose Hill, for the purpose of dissolving and selling a mercantile partnership alleged to have existed between the parties. After demurrer sustained, the bill was 'amended, and on appeal by the respondent it was held that a contract and status of partnership was sufficiently shown, and that the bill contained equity and was not subject to the demurrer. Hill v. Hill, 205 Ala. 33, 88 South.

224.

Thereupon testimony was taken by depositions, and on submission the following decree was rendered:

"This cause was submitted for final decree upon pleadings and proof as noted by the register, and upon consideration thereof, the court is of the opinion (italics supplied) that the proof does not show that any partnership ex isted between the parties complainant and respondent, and that the complainant is not entitled to the relief as to the dissolution of the partnership, but they were engaged in a joint adventure, and the complainant is entitled to have an accounting.

"It is further ordered, adjudged and decreed by the court that the register hold a reference and state an account between the parties and that he report his actions to this court. This cause is reserved for further orders. "This the 8th day of April, 1921.

"Hugh A. Locke, Circuit Judge."

On the coming in of the register's report and hearing thereon, it was "further ordered, adjudged, and decreed by the court that the amount due complainant, O. C. Hill, be

and hereby is fixed at and in the sum of $2,271.81, which amount the said O. C. Hill shall have and recover of the respondent, Mose Hill, and that execution may issue therefor."

register, at which time testimony will be taken ore tenus in open court of such witnesses as either complainant or respondent deem advisable to examine.

* *

Exception was duly taken to this decree, and also motion was made to set it aside, on the ground that the status of joint adventures had been determined by the decree of April 8, 1921, which was a final decree.

Pursuant to the interlocutory decree of March 27, 1923, testimony was taken ore tenus, and on June 1, 1923, on the hearing thereunder, the court was of the opinion that no partnership nor joint adventure existed, and it was "ordered, adjudged, and decreed by the court that no partnership or joint adventure existed between complainant and respondent, and complainant is not entitled to an accounting, and complainant's bill is dismissed out of court at complainant's costs." Complainant appeals from this decree.

W. M. Woodall, of Birmingham, for appellant.

Morris Loveman, of Birmingham, for appellee.

SOMERVILLE, J. [1] Under the uniform decisions of this court, the decree of April 8, 1921-in which the trial judge stated that he was of the opinion that no partnership existed between the parties, but that they were engaged in a joint adventure-was not a final decree as to the relation of the parties. Thompson v. Maddux, 105 Ala. 326, 16 South. 885; Randall v. Hardy, 107 Ala. 476, 294, 19 South. 386; Richardson v. Peagler, 19 South 971; Vice v. Littlejohn, 109 Ala. 111' Ala. 479, 20 South. 434; Trump v. McDonnell, 112 Ala. 256, 20 South. 524; Gentry Threadgill v. Dixie, etc., Co., 202 Ala. 309, 80 v. Lawley, 142 Ala. 333, 37 South. 829; South. 391; Bell v. King, 210 Ala. 557, 98 South. 796. These cases hold that the mere expression in a decree of the judge's opinion as to the merits of the case, not followed

208 Ala. 659, 95 South. 29.

This cause came on to be further heard on March 27, 1923, on complainant's petition for a decree of reference, whereupon the following decree was rendered:

"Upon consideration of the petition of complainant, the court is of the opinion that the existence of a partnership or joint adventure, vel non, between complainant and respondent, should be determined, and the court being de

sirous of further testimony:

"It is ordered, adjudged, and decreed by the court that this cause be and it hereby is set

peal.

ed by this court on the second appeal, when, This was quite plainly the view entertainin reversing the decree granting relief to complainant, it was expressly stated that the entire cause would be left open for such decisions and decrees as the chancellor might deem proper.

[2] It follows that the decree of March 27, 1923, ordering a hearing on the question of the existence of a partnership or a joint adventure, vel non, on testimony to be taken orally before the court, was within the power and discretion of the court, and not subject to the exception taken thereto.