68 Pa. 57 | Pa. | 1871
The opinion of the court was delivered,
At common law one tenant in common could maintain an action of account against his companion only in the case where he had expressly constituted him his bailiff of his part: Co. Litt. 200, b. The statute of 4 Anne, c. 16, s. 27, Roberts’ Dig. 48, introduced an amendment of the law in this respect by allowing the action against the co-tenant “ as bailiff for receiving more than comes to his just share or proportion,” without proof of an express contract. But neither at common law nor under any statute could assumpsit for use and occupation be maintained upon the mere occupation, though it might be shown to be permissive. Each tenant has an equal right to the possession of the whole, and without an express contract to pay rent, account was the only remedy under the statute of Anne. The statute of 11 Geo. II., c. 19, s. 14, Roberts’ Dig. 237, provides that “ it shall
Judgment affirmed.