Opinion
December, 1793.
Action for use and occupation, and one count for money had and received.
Plaintiff's wife and defendant were tenants in common of the tract of land, and the defendant received of the tenant of land the profits which belonged to plaintiff's wife. Motion for a nonsuit because by Statute, 4 5 Anne, c. 16, s. 27, account render was the plaintiff's only action, and in Headly and Lundy it was determined by this Court that case would not lie by one part owner of a shallop against another for having received his share of the profits.
For the defendant it was said personal actions would in some cases lie by one tenant in common against another, Co.Litt. 200a, and he relied upon the count for money had and received, Cowp. 289, 290, 294, and when there is an express promise, as where one acts as bailiff, case will lie as well as account, Salk. 9.
No doubt before the Statute of Anne case would not lie by one tenant in common against another unless he was actually appointed bailiff. At present if one tenant in common receive all the profits, the Statute has given a remedy by the action of account render. There is no evidence of an appointment as bailiff nor any evidence of a promise actually made. There must be a nonsuit entered.
McDONOUGH and RODNEY accordant, whereupon the plaintiff was called, and nonsuit.