It does not appear that the defendant has ever received any money as the proceeds of the crops or products of the common estate. All that is proved is, that the defendant has occupied the whole estate and taken the hay and other crops growing thereon. It is perfectly well settled that when one tenant in common has the sole occupancy of the common estate, without any claim by the cotenant to enter and occupy with him, no remedy is given by the common law in favor of the latter against the former to recover for such sole use and occupation. Each owns his estate per mi et per tout, and each has a right to occupy the whole if his cotenant does not choose to come in and enjoy the estate with him. In such case, the sole occupation of one is not an ouster of the other. It is only *284when a tenant in common has received in money more than his share of the rents and profits of the common estate, that an action at law can be sustained in this commonwealth by his cotenant to recover the surplus. Munroe v. Luke, 1 Met. 464. Shepard v. Richards, 2 Gray, 424, and cases there cited. There being no such evidence in this case, the plaintiff fails to maintain his action. Exceptions overruled.