The opinion of the court was delivered by

From the facts detailed in the bill of exceptions it is manifest, that, at the time of the sale and conveyance, by the plaintiff and Nathan Kinaston, to Powers, of the land referred to in the bill of exceptions, there was rent due and in arrear, which was a lien upon the premises, and which the plaintiff and Kinaston, upon that occasion, jointly obligated themselves to pay. It was a joint liability, which they were equally bound to discharge. That liability having been discharged by the plaintiff, by payment of the account, it gave him a just claim for contribution from Kinaston’s estate. This proposition would seem to be obvious. Indeed, it was admitted in the argument. If, then, the plaintiff is entitled to recover the amount of this claim in either of the forms of action, to which he has resorted, (for both appear to have been instituted for the sole purpose of enforcing payment of this claim,) then the judgment of the county court is erroneous and should be reversed.

But it is urged in argument, that, inasmuch as the plaintiff and Kinaston were tenants in common of the premises during their occupancy of them, and inasmuch as the claim of the plaintiff arises by reason of rent which accrued during their joint occupancy, it *492cannot be recovered in the action of book account, or assumpsit. Without stopping to inquire whether this conclusion would follow from the premises assumed, it is sufficient to say, that we do not think the premises are warranted by the facts in the case. Upon the sale to Powers the joint occupancy, or tenancy in common, of the parties, ceased. They had from year to year, during their occupancy, divided the profits of the estate, and, upon their sale to Powers, divided the purchase money ; and it does not appear, that any claims, growing out of their joint occupancy of the land,- remained unadjusted between them. This joint undertaking to pay the back rent was entered into at the time of the conveyance to Powers and after the joint occupancy of the land had ceased. It was a single, isolated matter, and, so far as appears by the case, the only matter, which then remained between them.

If the plaintiff and Kinaston had then, under the circumstances above referred to, executed their joint promissory note for the amount of the rent, and the same had been subsequently paid by the plaintiff, it can hardly be doubted, I apprehend, but that assumpsit for money paid would well lie against Kinaston for contribution; and if it would lie in that case, we are of opinion, that it would equally well lie in the present case.

From the view which we have taken of the case and the result to which we have come, it becomes unnecessary to consider the exceptions, which have been taken to the action of book account. We are all of opinion, that the plaintiff is entitled to recover the amount of his claim in the action of assumpsit; and consequently the judgment of the county court must be reversed and judgment entered for the plaintiff. And as the amount of the plaintiff's claim has been ascertained, judgment will be entered for that sum and the case remitted to the probate' court.