Every man claiming in a court of justice must
pursue the form of remedy which the law has prescribed. There is no doubt that if before the Statute of Anne one tenant in common had received all the profits, no action would lie on the behalf of another, unless he was appointed bailiff; and an actual appointment was necessary. 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 that the defendant was ever appointed bailiff or ever promised to pay. In Wilkins v. Wilkins there was an appointment as bailiff and an express promise to pay, both of which circumstances essentially differ that case from the present. In a case like the present, at law before the Statute, there was no remedy. The plaintiff has not pursued the remedy given by the Statute and therefore is not aided by it. His present action does not lie and a nonsuit must be ordered.
McDonough and Rodney, JJ., of same opinion.
Whereupon plaintiffs were called and nonsuited.