1. When a tenant, who had in writing promised to “pay rent money out of the first cotton gathered,” made a crop of cotton on the rented premises, the rent did not become due under the contract until the tenant gathered, or had had a fair and reasonable opportunity to gather, cotton of sufficient value to pay the rent, or until it was ascertained that the entire crop, after the same had been gathered, was not sufficient for this purpose.
2. Where in such a case the landlord sued out a distress warrant solely on the ground that the rent was due and unpaid, which was met by a counter-affidavit denying that the rent distrained for had become due, it was incumbent on him to prove, by evidence meeting the above-mentioned requirements, that the rent debt had matured before the distress warrant issued.
3. On the trial of the issue made by the filing of such a counter-affidavit it . was not competent for the plaintiff to prove that the defendant had removed crops of other personalty from the rented premises, the distress warrant not having been sued out. on any such ground.
4. The verdict forthe plaintiff in the magistrate’s court was contrary to law and evidence, and accordingly the superior court did not err in sustaining the defendant’s certiorari and ordering a new trial.
Judgment affirmed.
All the Justices concurring. Certiorari. Before Judge Felton. Bibb superior court. April term, 1899. Malcolm H. Ayer, for plaintiff. Hardeman & Moore, for defendant.