
    
      Richard Lewis and others vs. Henry J. Kemp, Adm’r.
    
    Sum. pro. by several tenants in common against the administrator of their co-tenant, who had either himself, or by tenant, cultivated tho land, for their undivided sharo of the value of tho rent: Held, that the aotion lay in the summary process jurisdiction.
    J3y sum. pro. the Court of Law oxorcises a quasi oquity jurisdiction, in which matters of account, under £20 sterling, aro determinable as in Chancery.
    
    
      Before Martin, J., at Edgefield, Spring Term, 1832.
    The plaintiffs were the children of Richard Lewis, deceased, who was seized, at the time of his death, of a tract of land. He left a widow, who afterwards intermarried'with the defendant’s intestate. During the year 1829, the defendant’s intestate cultivated the land, either himself or by tenant: and for two undivided thirds of the value of the rent, the present suit, by summary process, was brought.
    His Honor, after overruling a motion for non-suit, decreed for plaintiffs $43 50.
    The defendant appealed and renewed his motion for non-suit, on the ground, that the parties being tenants in common of the land, could not sue at law for their undivided shares of the rent.
    Bauskett, for appellant.
    Butler, Griffin, contra.
    
      
       Tho Act of 1769, establishing tho summary procoss jurisdiction of tho Court of Common Ploas is in these words : “It shall and may bo lawful for tho said Judges in tho said Courts, or any of them, to determine, -without a jury, in a summary way, on petition, all causes cognizable in the said Courts, for any sum not exceeding twonty pounds sterling, except whore tho title of lands may come in question : in which suit, tho plaintiff and defendant shall have the benefit of all matters, in the same manner as if the suit were commenced in the ordinary forms of common law or equity, and tho said Judges are hereby required so to do, and to givo judgment and award execution, together with costs, &ev But, in ease both parties shall desiro to have the said cause triod by a jury, or on application of either party, at his own exponso, then tho said Judges shall immediately order issue to bo joined, and the said cause to be triod by tho jury impan-nellod' at such Courts: The said potition shall contain the plaintiff’s charge or demand, plainly and distinctly set forth,” &e. P. L. 270.
      In Taylor vs. Drake and wife, 1 McC. 174, it was decided, that the Act did not give tho Court of Common Pleas authority to take eognízanco of causes, which belonged exclusively to the jurisdiction of the Court of Equity. Eor instance; in that case it was held, that sum. pro. would not lie to chargo.tho separate estato of a wife, which was in the hands of the husband as her trustee, with an account for goods sold to tho wife for her own use, and for the benefit of the trust estate. Tho Court, -per Johnson, J., say: “ It is impossible to put any othor construction on theso words, 1 all causes cognizable in the said Courts,’ than that they had relation to eases of which the Court then” (in 1769) “ had jurisdiction, adopting howevor, a now mode of proceeding, corresponding with the proceedings in equity or at law, as tho particular circumstances of tho case may require.”
      In this case, (Lewis vs. Kemp,) — when read in the light furnished by the case of Taylor vs. Drake and wife — the principle upon which the decision rests seems to bo this, that, although the action of account is not in use in’this State, yet, inasmuch as it is a proceeding known to tho common law, sum. pro. in tho nature of an action of account, will lie, in all eases where the Law Court had jurisdiction, by that form of action, either at common law, or by statute; and where, of course, tho amount claimed does not exceed £20, equal to $85 'll 3-7, and the title to lands is not in question.
      It is important, then, to know, in what cases the action of account lay at common law, or by statute; and in what ‘manner’ the Court proceeded, ‘if the suit were commenced in the ordinary form.’ Valuablo information upon this subject may be found, condensed into a brief space, in wheat. Selw. Ch. 1, “ Of the action of Account,” and the notes; which vide. See also Bae. Abr. Tit. Accompt.
      The first judgment is, that the defendant do account, usually termed a judgment quod computet. After which the Court assigns auditors, generally some of the officers of the Court, to take and declare the account between the parties. 1 Wheat. Selw. 5; Bac. Abr. Tit. Accompt (3?.) By the Statute 4 Ann. c. 16, § 27, (P. L. 97,) “the auditors are empowered to administer an oath, and examine the parties touching the matters in question.” 1 Wheat. Selw. 6. In Godfrey vs. Saunders, 3 Wils. 73, (which was pending in England when the Act of 1769 was passed in South-Carolina, then a Province,) may be found the pleadings and other proceedings, m extenso, in an action of account. In that case, issues were mado up, and a verdict rendered for the plaintiff, before judgment quod computet was given. The auditors assigned were the three prothonotaries of the Court. Whether the Court of Law in this State would feel itself authorized to make an order of reference to the Clerk, or to a special referee, one or more, in a caso proper for such aa order, according “to the forms of common law or equity,” remains to be decided. R.
    
   The opinion of the Court was delivered by

Johnson, J.

By the common law, it would seem, that one joint tenant or tenant in common, had no remedy at law against the other, when one had received the whole profits of the estate, for, say the books, he could not be charged as bailiff or receiver to his companion. But by the Statute 4 Ann. c. 16, § 27, (which is of force in this Statesee P. L. 97,) the action of account is given. 2 Cruise, Dig. 497,526. This form of action has never been, and is not now, in general use in this State, in the Law Courts ; and the jurisdiction of the Courts of Equity, in matters of account, seems to have entirely superseded it; and I doubt, notwithstanding the supposed analogy between this and the case of Coles vs. Coles, 15 Johns. R. 159, whether assumpsit could be maintained in the general jurisdiction of the Courts of Law. But this is a 'suit by summary process, in which the Law Courts exercise a quasi equity jurisdiction, in which either party may obtain a discovery from the other, as in Chancery; and in which matters of account, under £20 sterling, are determinable, as in Chancery. We are, therefore, of opinion, that the suit was well brought, and that the motion ought to be dismissed.

O’Neall and Harper, JJ., concurred.

Motion dismissed.  