
    (*) Ignatius Sargent versus Eben Parsons.
    One tenant in common of real estate, who occupies the whole estate, without claim on the part of his cotenants to he admitted into possession, and without hinderance by him, is not liable to an action of account by his cotenants.
    This was an action of account, brought by the plaintiff, as tenant in common with the defendant, of certain lands and tenements in 
      Boston, described in the plaintiff’s declaration, to recover his share of the rents, issues, and profits of the said lands and tenements, received, as the plaintiff alleges, by the defendant.
    * The defendant pleads that he has fully accounted, [* 150 ] &c., which is traversed by the plaintiff in his replication, and ¡hereupon issue is joined.
    At the trial of this issue before the present Chief Justice, November term, 1813, the plaintiff proved that the lands and tenements described in the plaintiff’s declaration were owned by Daniel Sargent, Esq., deceased, and the present defendant, as tenants in common. On the 18th of February, 1806, the said Daniel died intestate ; and his six sons, of whom the plaintiff is one, inherited their said father’s undivided moiety of the said lands and tenements in equal shares. On the 12th of January, 1803, Winthrop Sargent, one of the said six sons, died intestate, and his purparty of the same lands and tenements was inherited by Mary Sargent, his mother, and his five surviving brethren. From the said Winthrop's decease, until the 8th of February, 1809, the plaintiff was entitled to seven undivided thirty-sixth parts of a moiety of the said lands and tenements. On the 8th of January, 1809, the defendant conveyed his moiety of the said lands and tenements to the said surviving sons of the said Daniel Sargent, and to their said mother.
    From the 18th of February, 1806, until the 9th of March, 1809, the whole of the said lands and tenements were in the sole possession and occupancy of the defendant. In one of the buildings described in the declaration the defendant kept his counting-room, and he transacted his business upon, and, during all the time aforesaid, used, the wharves for the purpose of lading and unlading his vessels, and the buildings on the wharves for storing his goods, so far as they were fit for such purpose, and so far as he thought fit to use them ; and had and kept the keys of the buildings on the wharves ; and the said wharves were fully used by the defendant for bis vessels, especially during the late embargo. One or two of the tenements were occupied by tenants, during the time stated in the plaintiff’s declaration, who paid half the rent of the tenements, so by them occupied, to the defendant, and half to the heirs of said Daniel Sargent. The residue of the * tenements, which were [*151 ] not occupied as aforesaid by the defendant (excepting those hereinafter mentioned), were occupied by tenants, who paid rent to the defendant; who used and occupied an arched cellar under a tenement owned in common, and occupied by one Jones.
    
    The plaintiff did not prove, or allege, that he had appointed the defendant to be his bailiff of the rents, issues, and profits of the said lands and tenements, by any act done by him, or in any other way thin by the operation of law, upon the facts stated. On the 30th of May, 1807, J. T. Sargent, who was one of the sons of the said Daniel Sargent, and administrator upon the estate, rendered an account to the defendant, in which he stated him to be debtor for the use and occupancy of certain of the said lands and tenements to the 31st of December, 1806, and afterwards another account, in which he stated the defendant to be debtor for the rents of other of said tenements to April, 1807 ; and a third account on the 1st of December, 1807, in which the defendant .was stated to be debtor for the use and occupancy of the docks and wharves, and the buildings on the wharves, to that day.
    In the year 1807, the said administrator commenced a suit against the defendant, for the purpose of recovering the sums demanded, according to the accounts so rendered, for the occupancy of the said lands and tenements after the decease of the said Daniel Sargent. The said suit was afterwards discontinuéd, the form of action having been misconceived.
    The defendant proved, that, in January, 1812, he rendered an account to the plaintiff, wherein he stated the amount of the rents which he had actually received, from tenants of certain of the tenements respectively, until the 8th of February, 1809.
    It was agreed that the said Sargent had never demanded of the defendant possession of the premises occupied by him as aforesaid, otherwise than by the account and action aforesaid ; and that, for all moneys received for rent of any part of the estate owned [ * 152] in common, he had, for the purposes * of this action, fully accounted ; so that the question to be decided in this suit is, whether the defendant is answerable, in this action of account, for the stores, wharves, &c., owned in common, but occupied by him alone ; and a verdict was directed for the plaintiff, with a view to reserve this question. If, by law, he ought so to account, judgment was to be rendered on the verdict, and auditors were to be appointed ; otherwise the plaintiff was to- become nonsuit, and the defendant to have judgment for his costs.
    
      W. Sullivan, for the plaintiff.
    
      Prescott and Hubbard, for the defendant.
   Parker, C. J.

A verdict has been taken in this case for the plaintiff, subject to the opinion of the Court, whether, upon the facts reported, the action can be maintained. The title of the plaintiff to support the action is not questioned, if it can be maintained at all.

The rents, received for the use and occupation of the tenements leased by the defendant, are not made the subject of this action; so that the only question is, whether one tenant in common of real estate, who occupies the whole estate, without claim on the part of his cotenants to be admitted into possession, and without hinderance by him of such possession, is liable to this action of account.

The action of account is maintainable only against a bailiff; and a bailiff can only be one who is appointed such, or who is made such by the law ; which latter instance applies only to a guardian, who is bailiff of his ward, and who is liable, not only for rents and profits actually received, but also for those which he might have received by a proper management of the estate.

One tenant in common may, by contract, make another his bailiff or receiver ; and, if he does, he may bring him to account in this form of action ; and, probably also, to avoid a process considered in some degree troublesome, might sue him in indebitatus assumpsit as on a promise to account. But this must be for rents and profits actually received beyond his share. For by the common law no remedy is given * for a mere sole use and occupation by [*153] one of the tenants ; for it is in the power of each tenant at any time to occupy ; and the not doing it by one would look like an assent that the other should occupy the whole. For he has a right to occupy the half of every part, every room in a house, and every portion of a wharf or store ; and it is by compact only between them, that either can be confined to any specific portion of the common estate.

In Co. Lit. 200 b. the law upon this subject is thus laid down. “ If one tenant in common maketh his companion his bailiff of his part, he shall have an action of account against him. But, although one tenant in common, without being made bailiff, take the whole profits, no action of account lies against him ; for, in an action of account, he must charge him either as a guardian, bailiff, or receiver, which he cannot do, unless he constitute him his bailiff.”

Nor is this law unreasonable ; for, if one joint-tenant or tenant in common, finding the estate unoccupied by his companion, either from negligence, or because he may not deem it for his interest to occupy it, should take the whole into his possession, it would be hard to make him liable for rent; when, perhaps, he occupied the whole for little other reason, than that it would otherwise be unoccupied. Besides, as each tenant is seized per mi 8f per tout, an entire occupancy by one, of any particular part, would subject him to an action, as much as the entire occupation of the whole tenement ; which would be absurd and unreasonable.

That this is the common law doctrine, if any doubt existed, would be proved by the interference of the British Parliament in the statute of 4 Ann. c. 16; it being thought necessary to enact by that statute that an action of account should lie by one tenant in common against another, who has actually received more than his share of the profits Whether this statute is in force in this Commonwealth, in consequence of its having been adopted and used here, needs not be determined ; because, if it were in force, it would not aid the plaintiff in the present action ; — first, because the plaintiff [ * 154] * has not charged the defendant with having received rents and profits, otherwise than by his occupancy ; and, secondly, because, under that statute, it is not the action of account, but an action upon the statute, or upon the particular circumstances which give the action, that ought to be brought. This wt-is de termined in the case of Wheeler vs. Horne , which was cited in the argument.

For these reasons we are all satisfied that the verdict in this case cannot be sustained. It is therefore to be set aside, and the plaintiff must be called.

Plaintiff nonsuit. 
      
       Vide Sherman vs. Ballou, 8 Cowen, 304.
     
      
      
        Bac. Ab., Joint-tenants, (L), vol. 4, p. 517, 7th ed.
      
     
      
       Vide 9 Mass. Rep. 542.
     
      
      
        Willis, Rep. 208.
     
      
      
        Wheeler vs. Horne, Willis, Rep. 208. — Vin. Ab., Joint-tenants, (R. a pl. 14.) — Morton vs Knowles, 8 D. & E. 145. —Miller et al. vs. Miller, 7 Pick. 133.
      It does not seem to be necessary that the defendant should have received profits otherwise than by his occupancy, in order to give a cause of action to the plaintiff upon the statute. It is sufficient, if he have in any way received more of the issues or profits than comes to his just share and proportion. 4 Anne, c. 16, § 27. — Dane’s Ab, Ch. 8, Art. 3, § 13.
     
      
       [The action of account is now abolished in this Commonwealth. See Rev. Stat., Chap. 118, § 43. — Ed.]
     