
    CONSTITUTIONAL COURT, COLUMBIA,
    DEC. 1811.
    George Lightner v. John Hammeter.
    Where a plea puts the title of land in issue, it cannot be tried in an action by summary process.
    Motion to set aside a nonsuit, ordered by Smith, J., in the Court of Common Pleas for Richland district.
    
      
      Noto. In case for use and occupation of a house hj permission of plaintiff, defendant pleaded nil habuit in tenementis; and upondemurrer, the court held it is not a good plea, as it would he upon a lease at common law. Bull. N. P. 139. See 5 T. JR,. 4, 5. A tenant who occupies by license of another, is not entitled to call on that other to shew the title under which he let the land. This rule is founded in public convenience.
    Th6 action was by petition and summons, to recover a compen•sation for the use and occupation of a tract of land, not occupied by permission. There was no contract. The defendant pleaded nil habuit in tenementis. The court held that this plea put the . . title in question, and that the court had no jurisdiction in a summary way, to try the question of damages for the use and occupation. Therefore nonsuited plaintiff.
    Motion by Egan, for the plaintiff,
    submitted.
   Curia.

The' plea put the title of the land in issue ; and the titles of land cannot be tried in an action by summary process. There was no proof but of the occupation. None of permission, or agreement, to occupy.

Motion refused.  