#### ALBERT FOSTER v. THOMAS S. PENRY.

*Landlord and Tenant — Jurisdiction.*

3. Where A rented land from B without any agreement as to the rent *to ■*bo paid ; *JIM,*that A was a tenant and entitled to the whole crop until a division.

*2.*In an action by B to recover the rent, when neither the sum demanded nor the amount ascertained to be due, exceeds two hundred dollars ; *Held,*that the Superior Court has no jurisdiction.'

Civil ACTION tried at Pall Term, I87d, of Davie Superior-Court before *Kerr, J.*The plaintiff claimed certain crops*,, us due him from the defendant, for rent of a plantation fertile year 1874. There was evidence tending to show that: -defendant rented the plantation of plaintiff and that he; was to pajr rent in.kind, and that one-third of the crop was? the customary rent. The jury however upon this issue being submitted found that the defendant did not agree to-pay one-third of tbe crop in kind ; and there was no evidence-that the defendant agreed to pay money rent. The jury found as a further fact, that the value of the rent of the land for 1874 was $177.75 ; this sum being ascertained by calculating the value of - the com, wheat, &c , raised thereon, during said year.

*132Ilis Honor thereupon . gave judgment in favor of the plaintiff for the value of the rent and costs of action, from .which the defendant appealed.

*Mr. T. J. Wilson,*for the plaintiff.

*Messrs. Watson 8?*Glenn, and *J. M.*McCorlie, for the defendant.

Faikcloth, J.

This action is governed by the Act of 1868-’9, eh. 156, and was brought, before a division of the •crop, for one-third part of the crop raised on the land of the plaintiff during the year 1674.

Npon the issues submitted, the jury find that the defendant rented land from the plaintiff’ and that he did not agree to pay the plaintiff one-third of the crop in kind, and it appears frern the case agreed, that there vas no evidence that lie agreed to pay any stipulated money rent, nor does it appear that he agreed to pay any money reut at all.

In this condition of the case, the plaintiff could not recover on the idea that lie had title to the whole crop, because Lis agreement was not in writing, as required by § 13 and it was not an agreement to pay a money rent as required by •§ 14 ; besides, when nothing aj pears except that theie nas a renting, as is the case here, the land for the term belongs to the tenant, and the title of the whole crop is in the defendant as tenant until division under the Act of 1868-’9. The plaintiff was, after verdict, allowed to amend his complaint, by demanding compensation for the use and occupation of his premises.

Without stopping to consider whether, under § 132 and other liberal provisions of C. C. P., the plaintiff can so amend his complaint, as substantially to change an action *ex delicto*into an action *ex contractu,*we are of opinion that the plaintiff cannot recover in this action even as amended, because neither the sum demanded nor the amount ascer-*133tnine.1 to bo due exceeds §2 )J, and the matter is therefore within a magistrate's jurisdiction.

Assuming that the relation of Landlord and Tenant existed between the parties, the plaintiff was entitled to partition of the crop, which would require a different kind off proceeding’ from the present.

The defendant will recover his costs in this Court.

There is error. Let this be certified.

Per CubiaM. Judgment reversed.