The motion to strike the bill of exceptions cannot prevail. The first order of the court made during term time, allowed the appellant thirty days from the adjournment of court. Excluding the first day after adjournment from the computation, the subsequent orders of the court were made within time. Code of 1896, §1L
We will not undertake to follow in detail the many exceptions and assignments of error insisted upon, but will declare general principles of law which cover them all. The action was begun by attachment by a landlord against his tenant, for rent and advances. It is permissible to state in the affidavit a gross sum due for rent and advances. — Giddens v. Bolling, 93 Ala. 92. The amended affidavit, and which amendment was properly allowed, seems to be regular and full and free from objection. All the objections by the defendant, whether raised by plea in abatement, demurrer or otherwise, on account of any supposed defect in the affidavit, were properly held to be insufficient.
The judgment entry shows that the 9th, 10 th and 11th grounds of demurrer to the complaint were sustained. We are .not informed as to any amendment made to the complaint so as to make it conform to the ruling of the court. As no question is raised on this account, we presume the trial proceeded upon the counts' counting for rent and advances.
The claims for rent and advances due a landlord are of such kindred, character, and treated and provided for in such a manner by the . statute, we are of opinion they can be joined in one count, or in separate counts of the same complaint.
The affidavit made by plaintiff for the suing out of the attachment, the attachment writ, and complaint, rest upon the proposition that the relation of landlord and tenant existed between plaintiff and defendant. As a defense to this action the defendant pleaded as the sixth plea, “that it was expressly agreed between plaintiff and defendant, that the plaintiff was. to furnish the lands and the necessary teams and tools for the' cultiva*460tion of said farm of the plaintiff, and it was further agreed that the crop was to be divided, that is to say, the plaintiff was to have as his share of the crop one-half of the cotton in bales, and one-third of the seed cotton, and one-third of the other crops grown on the place for the year 1894, and the defendant was to have for his share the remaining portion of said crops, etc.”
Section 2712 of the Code of 1896 (Code of 1896 §3065) is as follows: “What a contract of hire. — When one party furnishes the land and the team to cultivate it, and another party furnishes the labor, with stipulations, express or implied, to divide the crop between them in certain proportions, the contract of hire shall be held to exist.” The statute then gives a lien to the laborer, which may be enforced “in the same cases as a lien in favor of a landlord.”
If the facts set up in this plea be true, the relation of landlord and tenant did not exist, and there would- he such a variance between the declaration in its then condition and the proof as to defeat a recovery. We think the court erred in sustaining the demurrer to this plea. The conclusion of the plea, that plaintiff had no lien, was a mere conclusion of the pleader from the facts, but did not vitiate the legal effect of the agreement as stated in the plea.
Section 2760 of the Code of 1896 provides as follows: “Lien of tenant in common on crop of co-tenant. — Persons farming on shares, or raising crops by joint contributions, in such manner as to make them tenants in common in such crops, or their assignees, shall each have a lien upon the interest of the other in such crops for any balance due for provisions, supplies, teams, materials, labor, services and money, or either, furnished to aid in cultivating and gathering such crops, under contract, or furnished when the interest of such crops requires it, in case of a failure of either to contribute the amount and means as agreed upon by the parties.”
Section 2761 is as follows: “Lien enforceable by attachment; grounds; remedy cumulative. — Such lien may be enforced, by attachment upon the grounds, and in the manner provided for the enforcement of the landlord’s lien on crops grown on rented lands; but this section shall not prevent the enforcement of such lien by any other remedy.”
*461In the case of Gardner v. Head, 108 Ala. 619, we had occasion to consider these sections. Tenants in common who are snch by reason of the facts and conditions provided in these sections, are empowered by statute to sue their cotenants and enforce their respective rights and claims, upon the same grounds and in like manner as landlords against their tenants. It may be that under our liberal system of amendments, the plaintiff might amend the attachment proceedings and complaint. We do not- decide this question. Section 2703 of the Code of 1896 (3056 of the Code of 1886) gives the landlord a prior lien for advances made “by another at his instance or request, for which he becomes legally bound or liable, etc.” We do not find this provision extended to the employer or to a tenant in common. This is matter for the legislative department and not the courts.
The bill of exceptions does not purport to set out all the evidence,-and we will not undertake to discuss other assignments of error, further than to say, that if the facts set up in the sixth plea hád been proven, the relation of landlord and tenant would not have existed, as asserted in the first charge given to the jury.
We agree with the court that advances by a landlord to a tenant, for which the law gives a lien, are not confined to those made after the beginning of the crop. The tenant and his family are entitled to sustenance and assistance while waiting for the proper time and suitable season to begin preparation and cultivation.
Reversed and remanded.