¶1At common law this action could not be maintained. “ If two be possessed of chattels personalis in common by divers titles, as of a horse, an oxe or cowe, &c., and if the one take the whole to himself, out of the possession of the other, the other hath no other remedie but to take this from him who hath done to him the wrong to occupie in common, &c., when he can see his time (quant il poet voir son temps,” &c.) Co. Lit. § 322. An action for money had and received will not lie by one tenant in common against his co-tenant, who has received more than his share of the profits. Thomas v. Thomas, 5 Wels. Hurts. & Gor., 29. The tendency of decisions in this country has been to do away with the technical difficulties, which impeded the recovery of one tenant against another. “In New York it has been frequently held,” says Nelson, C. J., in Cochran v. Canington, 25 Wend. 410, “that on the sale of a chattel by a joint owner and *362receipt of the money, the co-tenant may recover Ms moiety in the action for money had and received.” The same principle applies when the common property has been leased and the rent has been paid. Brigham v. Eveleth, 9 Mass. 538. But to authorize a recovery, the funds must have been received and in the hands of the co-tenant against whom the suit is brought. In order to support such an action, it must appear, not merely that the defendant has received more than his share of the entire profits of the property or estate held in common, after deducting all reasonable charges; but that the balance is due to the plaintiff, and not to the other co-tenants. Shepard v. Richards, 2 Gray, 424.
¶2The plaintiffs failing to make out a case which will authorize them to recover, according to the rules of the common law, claim that this action may be maintained under the Act, c. 61, approved Aug. 8,1848, “giving further remedies to tenants in common.” By § 1, it is provided, that one co-tenant may maintain an action of special assumpsit to recover his share, “ whenever any joint tenant or tenant in common shall take and receive the whole of the rents, profits or income of the joint estate, or more than his share of the same, without the consent of his co-tenant,” S/c. The declaration contains no allegation, that the defendant has taken the common property “without the consent of his co-tenant.” Indeed, if such fact has been alleged, it is wholly unsustained by the facts as agreed upon by the parties. The case is equally destitute of any proof, that the joint estate has yielded any “ rents, profits or income,” without which there is nothing of which the plaintiff has been deprived, or in which he is entitled to share.
¶3According to the agreement of the parties, a nonsuit must be entered. Plaintiff nonsuit.