The opinion of the Court was del-livered by
Mr. Justice Gary.
The appeal herein is from a decree of his Honor, Judge Gage, which will be reported'. Upon the hearing of the case in this Court, the appellant’s attorney stated that he did not specially urge the nth and 12th exceptions.
1 It will not be necessary to> consider the exceptions seriatim, as they practically present but three questions, the first of which is as follows: Is this a case on the law or equity side of the Court? The parties to the contract either were partners or joint owners of the crops. If they were partners, the Court of Equity was the appro*303priate tribunal for winding up and settling the disputes growing out of the partnership; and if they were joint owners of the crops, the Court of Equity was likewise the proper forum in which to seek partition thereof. Pom. Eq. Jur., sec. 1391; Freeman on Cotenancy, sec. 426. The case was, therefore, properly triable by the Court in the exercise of its equitable jurisdiction.
2 The next question is whether there was error in refusing to submit issues to a jury. By reference to section 2740 of the Code, and Rule XXVIII. of the Circuit Court, it will be seen that the motion was addressed to the discretion of the presiding Judge, and the facts in the case do not show that it was abused. The exceptions raising this question are overruled.
3 The last question is whether the presiding Judge erred in deciding that the defendant’s counter-claim could not be sustained. The view which the Court takes of this question renders unnecessary the consideration of the distinction between a counter-claim and a set-off. In the complaint it was alleged: “that it was mutually understood and agreed that should at any time during- the working season of 1896, the defendant have need upon said plantation for more convict laborers than could be supplied by the said plaintiff and board of directors from the prisoners at the penitentiary available for said purpose as aforesaid, in that event the deficiency in convict laborers was to be supplied by the employment by the defendant of free laborers at such compensation as should be fixed by him, the wages of said free laborers to he paid by the plaintiff upon the request of the defendant.” These allegations were sustained by the testimony. The defendant agreed to employ free laborers at the expense of the plaintiff, if they were needed, and there is no testimony that his failure to employ free laborers was caused by any act of the plaintiff. The defendant could not hold the plaintiff liable under these circumstances, and the demurrer to the counter-claim was properly sustained.
*304It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.
4 Petition for rehearing was filed July 3, 1899, and remittitur stayed until further order of Court. On November 29, 1899, the petition was refused and remit-titur ordered down.