By the law of England prior to the 4 Anne Ch. 16, it was a well settled law that if one tenant in common occupied and took the whole profits, the other had no remedy against him while the tenancy in common continued, unless he was put out of possession, when he might have his ejectment; or unless he appointed the other to be his bailiff as to his undivided moiety, and the other accepted that appointment, *294in which case an action of account would lie against the bailiff, as in the case of the owner of an entirety of an estate.
Until the statute of Anne this state of the law continued. That statute in sec. 27 provides that an action of account may be brought and maintained "by one joint tenant and tenant in common, his executors or administrators, against the other as bailiff, for receiving more than comes to his just share and proportion, and against the executor and administrator of such joint tenant or tenant in common.”
But under this act it was held that if one of two tenants in common solely occupy the land, farm it at his own cost, and take the produce for his own benefit, his co-tenant cannot have an action of account against the former as his bailiff, by reason of the former having received more than comes to his just share and proportion. But it was held that this statute of Anne applied only to cases where rent or payment in money, or in kind due in respect of the premises, is received from a third party by one co-tenant who retains for his own use the whole or more than his proportional share. Henderson v. Eason, 9 Eng. L. & Eq. 337, 340; S. C. 17 Adol. & Ellis N. S. 701; 4 Kent’s Com. 369, 370.
It is claimed in argument that by the holdings in Massachusetts, this action may be maintained on the general counts. In Shepard v. Richards, 2 Gray 424, where the cases are reviewed, it is held that one tenant in common who has received in money more than his share of the profits of the estate, is liable to his co-tenant in an action at law for the surplus; but that, in order to support such an action, it must appear that the defendant has received more than his share, not merely of a single article of produce, but of the entire profits of the estate after deducting all reasonable charges, and that the balance is due to the plaintiff and not to other co-tenants; and in Reck v. Carpenter, 7 Gray 283, it is held that a tenant in common who has accepted and taken the profits of the joint estate, is not liable to his co-tenant for a share thereof, unless he has received money for the proceeds of the crops, beyond the amount of his own share.
In Odiorne v. Lyford, 9 N. H. 502, the general doctrine is stated that while one tenant in common cannot exclude another tenant in common from the possession of the common land, and if he thus ousts his co-tenant he will be liable in trespass, yet that for a mere breaking and entering and taking the whole profits, trespass cannot be maintained. Great Falls Co. v. Worster, 15 N. H. 460; Smith v. Woodman, 28 N. H. 528.
This last case is also an authority to the point that the plaintiff cannot recover on the general counts in this case, as is also Mussey v. Holt, 24 N. H. 428. Our statute provides that "if any co-tenant of any real estate shall hold the exclusive possession and income thereof against the will and without the consent of his co-tenant, the co-tenant so excluded may, in action of assumpsit, recover of the person holding such possession the full amount of all damages he may have sustained thereby.”
By this provision it was intended to provide a more simple and direct remedy for the co-tenant who had been excluded or ousted of the possession of the common land, but it could not have been intended, we *295think, to change the whole common law, in regard to the nature of tenancies in common, but it was intended that this new remedy should be confined to the case stated in the statute where the holding by one tenant was without the consent and against the will of the co-tenant.
Upon this construction of the statute the evidence does not sustain the action upon the special counts ; and upon the principles of the common law as settled by the authorities, the evidence here does not sustain the action upon the general counts for use and occupation.
But it is claimed in the argument that the question should have been submitted to the jury, as to whether the occupation was in fact against the will and without the consent of the plaintiff. But upon the evidence stated there would seem to be no doubt upon that point. Plaintiff testified that he always expected the defendant would take the land at the appraisal, &c., and that he always understood that on the final adjustment the defendant would take the farm at the inventory and pay the interest. The case also finds that there was no evidence that plaintiff at any time objected to defendant’s thus occupying and cultivating and taking the profits of the land to his own use. In other words, there was no evidence tending to prove that the possession of the defendant was against plaintiff’s will, while the evidence from himself was that he never objected but in fact consented to such occupancy. Upon this evidence there was nothing for the jury, especially since the possession of the land by one will be presumed to be rightful, and with the consent of the co-tenant, until the contrary is proved.
Exceptions overruled.
Judgment of nonsuit.