88 Pa. 144 | Pa. | 1879
delivered the opinion of the court, January 6th 1879.
It is unquestionably true that the Courts of Common Pleas, by the Act of October 18th 1840, Pamph. L. 7, have all the powers and jurisdiction of courts of chancery, in settling partnership accounts, and such other accounts and claims as by the.common law and usages of this Commonwealth have heretofore been settled by account-render. These words' are-broad enough to include accounts between tenants in common,' though this remedy was first given to them by statute 4 Ann., c. 16, sect. 27, reported by the judges to be in force in this state: 3 Binn. 625. It seems, however, very well settled that account will not lie against a.- disseisor or other wrongdoer.' To maintain an action of account, said Lord Coke, before the statute, there must be either a privity in. .deed by the consent of the party, for. against a disseisor or other wrongdoer no account doth lie, or a privity in law ex provisione legis-, made by the law as against a guardian: Co. Litt. 172 a. So if .a joint tenant takes all the profits to his own use, account will not lie: 1 Rol. 117, l. 30. At common law indeed no action of account .lay by one tenant in common against another, unless the latter had been specially constituted the bailiff of the other:. Co. Litt. 172 a. This the statute was intended to remedy: 2 Bl. Com. 194. Yet there is nothing which would seem to change- the well-settled • rule, that one out. of possession has no right to an account against the tenant holding adversely, whether the plaintiff claim the whole or a part. Such an action is not the proper action for trying title. ■ The same principle has been recognised in equity. In Tilly v. Bridges, Prec. Ch. 252, it was held, that when one has title to the possession of land, and makes an entry whereby he becomes entitled to recover
Decree affirmed, and appeal dismissed at the costs of the appellant.