This is an action of unlawful detain-er, commenced in the justice court and carried by appeal from that court into the circuit court. In the circuit court the plaintiff obtained a judgment, from which the defendant appeals to this court.
This is the second appeal in this case to this court.— Cooper v. Gambill, 146 Ala. 184, 40 South. 827. On the present appeal there are 18 assignments of error on the record. Of these the fifth, seventh, eleventh, and twelfth assignments are expressly abandoned by the appellant.
The first, second, and third assignments of error go to the trial court’s ruling on the demurrers to the complaint. When the case was here on former appeal, it was then decided by this court, that the suit was properly instituted in the name of Cooper. And we may here say that the words “for the use,” etc., may be regarded as surplusage, and there is therefore no merit' in the ground of demurrer again raising this question. — Reese v. Reaves, 131 Ala. 195, 31 South. 447, and cases there cited.
*644We were at first of the opinion that the complaint was subject to the demurrer interposed by the defendant, but upon more mature consideration we have reached a different conclusion. While the terms of the lease contract are averred in each of the counts of the complaint, yet each of said counts in its averments is in substantial compliance with the form given in the Code for unlawful detainer suit. — Code 1896, p. 948, form 27. The demurrers to the complaint were, therefore, properly overruled.
The plea offered to be filed by the defendant at the time of the trial, and which was disallowed by the court, we think, under the circumstances, was a matter addressed to tiie discretion of the court. If the plea be considered as sufficient in its averments to constitute a good plea, it only went to the personal disability of Leishman, for whose use the suit ivas brought, arising after suit commenced, and in the nature' of a plea in abatement. It did not go to the merits of the suit, and, if allowed, the suit could have continued for the use and benefit of the trustee in bankruptcy. Moreover, a term of the court had been allowed to pass after the disability arose before the plea was offered, and then not until after the trial was reached, late in another term of the court.. As stated above, we think, under the facts, it was a matter addressed to the discretion of the court.
If there was error in admitting in evidence the deed from A. Cooper and Clara W. Cooper to Leishman, it was harmless, as there was other evidence, which was undisputed, of a sale by the plaintiff.
The motion to suppress the deposition of Leishman on the ground stated was without merit, and properly overruled.
It was permissible to show the rental value of the leased property pending the appeal, and to have recovery of *645the same on plaintiff’s motion. — Code 1896, § 2146; Giddens v. Bolling, 92 Ala. 586, 9 South. 274.
The evidence showed that notice of the sale and a requirement of the possession of the property under the terms of the lease contract was given the defendant for at least 40 days before the demand in writing for possession was made. Forty days was, in law, a reasonably time given the defendant to quit, and was sufficient to terminate his possessory interest under the lease. The evidence also showed a demand in writing for possession before suit. The court was justified, under the evidence, in giving the general charge requested by the plaintiff; and, since the hill of exceptions does not purport to set out all of the evidence in the case, it will be presumed, in support of the court’s action that the evidence was undisputed.
We find no reversible error in the record, and the judgment will be affirmed.
Affirmed.
Tyson, C. J., and Simpson, McClellan, and May-field, JJ., concur.