As the objection to the complaint is not specified in the demurrer, we have only to consider whether it contains a special cause of action. The defendant’s entry into possession of the land was not lawful.' It was a trespass. The parties, however, were competent to waive the tort, and in that case assumpsit would lie for the use and occupation, which is not maintained when the defendant’s possession is tortious, or adverse.—1 Chit. Plead. 107; Stockett v. Watkins, 2 Gill & Johns. 326; Curtis v. Treat, 8 Shepley, 525.
If it is true that the defendant recognized the plaintiff’s rights of title and possession, and remained on the premises, doing valuable work for him, and obtaining from him the materials to perform it with, the law will understand that there was an agreement between the parties, either express or implied, which rendered the defendant’s possession neither tortious nor adverse, but lawful.—Waugh v. Ridgeway, 42 Ala. 368; Rainey v. Capps, 22 Ala. 288. The demurrer was properly overruled.
We adhere to the rule declared in Dumas v. Hunter, *614(30 Ala. 75,) that secondary evidence of the demand in writing, which is indispensable to the maintenance of this action, can not be received, until the proper predicate has been laid for its introduction. The statute (Rev. Code, § 3300,) requires an unequivocal demand in writing, the sufficiency of which the court may determine. It may not be left with the defendant, and thus the proof might depend entirely on oral testimony, to the defeat of the law. A conditional request, or ambiguous expression, might be converted by imperfect remembrance into a formal and imperative demand. The plaintiff must prove that the defendant is a wrong-doer.
The authorities conflict on the question, whether notice to produce a writing which is in the possession of the opposite party or his attorney in court, or so near that it can be obtained without delaying the trial, is sufficient when given after the trial has commenced. It would be obviously unreasonable to compel a party or his attorney to leave the court in quest of papers, when perhaps during the interval the cause may be reached. But is certainly incumbent on the party desiring the paper, who gives notice for its production after the trial has commenced, to show by direct evidence, or clear presumption, that it can be obtained without delay. In this case, he failed to do so, because the defendant’s counsel denied that he had it, or knew anything about it, even if any presumption be admitted. There was, however, no necessity for the defendant to have the paper with him, if it was a proper demand. 4 Phil. Ev. (Cow. & Hill’s Notes), 416-18; Utica Ins. Co. v. Caldwell, 3 Wend. 296; Gorham v. Gale, 7 Cowan, 739. The court erred in admitting the secondary evidence.
The charges of the court which were objected to were nothing more in effect than a repetition of the judgment on the demurrer.
The judgment is reversed, and the cause remanded.