No doubt but that 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 action of account render. There is no evidence of an *14appointment as bailiff, nor any evidence of a promise actually made; there must be a nonsuit entered.
McDonough and Rodney, Justices, of the same opinion. Whereupon the plaintiff was called and nonsuited.