1860. July Term. Early & wife V. Friend & als. that they were not to be charged with interest upon the annual profits, the report was recommitted, with instructions to the commissioner to re-state and settle the account upon the evidence then in the record, or which might be produced. From this decree Samuel H. Early and wife and the trustee, Jubal A. Early, applied for an appeal, which was allowed. The case was most elaborately argued in printed notes, upon all the questions raised in it, by Beverly R. Johnston and Price, for the appellants, and Conway Robinson and Fry, for the appellees, Thomas R. and Joseph Friend; but the decision of the court involves but two of these questions. For the appellants, it was argued: If the court had no jurisdiction of the case, the defendant must have been badly advised when he asserted in his answer, which he also swore to, that the regular course had been pursued for the attainment of rents and profits. And with the perfect assurance which he felt, that, upon taking the account, a large balance would be found in his favor, he might well challenge the investigation. That investigation has been made. It was prayed for by the one party and conceded by the other, each claiming a balance in his favor. But these expectations could not possibly be realized on both sides. A balance could not be on both sides-one or the other must be the creditor and the other the debtor. One or the other party must be disappointed in his hopes. So the learned and able counsel for the defendants, fearing that their client was too sanguine, when he anticipated a large balance upon settlement in his favor, have now, for the first time, discovered that the court cannot take jurisdiction of the case to ascertain the actual amount of the balance, or on which side it will fall. An account of rents and profits being the object of the suit, and being prayed for in the bill, and being acquiesced in in the answer, there being no plea to the jurisdiction, it seems to us that without the aid of our act of assembly, and without the aid of any adjudicated case, but upon the general principle and general practice of a court of equity, it would require the want of jurisdiction to be very palpable before it would, at this stage of the case, dismiss the bill. Ruffners v. Lewis' ex'ors, 7 Leigh 720; White and McCall, not reported. In the first of these cases, Judge Carr says (p. 738): "I think, however, the accounts have been taken wrong. The Ruffners must be treated as tenants in common with Prior, not as trespassers. They are lia ble for a fair share of the profits, &c." Judge Tucker says (p. 743): "First, as to rents and profits: I have no question that in the settlement of them the Ruffners ought to be treated as tenants in common with Prior, and those claiming under him. They claim to hold Reynolds' interest at a very early period, by contract with him, and, therefore, held in his right one moiety, while they wrongfully took the exclusive enjoyment and possession of the other moiety, which did not belong to them." Here both judges treat the Ruffners as tenants in common with Prior, and those claiming under him, and therefore were liable to a fair share of the profits. Where a bailiff is made by contract, and not by law, he must consent to the relation. When he takes the profits to himself exclusively, being tenant in common in possession, the law makes him bailiff because of his interest and his excessive receipts. To review all the numerous authorities cited upon this subject by the learned counsel on the other side would be as tedious as we apprehend it would be unprofitable. We believe that when the court comes to 1860. July Term. Early & wife V. Friend & als. 1860. July Term. Early & wife V. Friend & als. review them, they will find them-at least many of them-inapplicable to the facts of this case. Here is a property which cannot be occupied by more than one proprietor. It cannot be occupied jointly. It is indivisible, so the Lynchburg court held, in a suit in which all these parties were parties, and by its decree they are bound. It is productive of large profits, in the hands of a judicious agent or bailiff, rendered so principally on account of the salt water and the coal. Now, after the salt water and coal have been used until the water is nearly exhausted, and has receded fifteen or eighteen hundred feet, and the coal is diminished in quantity, rendered more difficult of access, if not literally consumed, an account of profits is inadmissible in a court of equity. It may not be amiss to ascertain who a bailiff is in le gal contemplation. A bailiff is one who has the admin-istration and charge of lands, goods and chattels,to make the best benefit for the owner. Coke Litt. 172; 1 Story's Eq., § 446. "And against whom, therefore, an action of account would lie for the profits which he had made, or might, by his industry or care, have reasonably made, his reasonable charges and expenses being deducted." 2 Fonb. Eq., B. 2, ch. 7, § 6, and note n. The remedy in equity in cases of account is generally more complete and adequate than it is or can be at law. Mitford by Jeremy, p. 120; Corporation of Carlisle v. Wilson, 13 Ves. R. 275; 1 Story's Eq., § 450, 451. In all cases of joint interests, where one party receives all the profits, he is bound to account to the other parties in interest for their respective shares, (deducting the proper charges and expenses,) whether he acts expressly by authority, as bailiff, or only by implication, as manager, without dissent, jure domino over the property. 1 Story's Eq., § 466; Strelly v. Winson, 1 Vern. R. 297; Horn v. Gilpin, Ambl. R. 255. Before the statute of 4 Anne, ch. 16, § 27, a tenant in common had no remedy for profits against the tenant in possession receiving the profits. Coke Litt. 199 b, 200 b; but this statute gave a remedy by giving an action of account. The case of Bennet v. Whitehead, 2 P. Wms. R. 644, referred to by Mr. Robinson, is not deemed a very conclusive authority, to establish anything in this case against us. The account in that case was directed, and the only question of any difficulty was as to the time at which the account should commence. It was ordered to commence with the plaintiff's title. There is as little to our prejudice in the case of Morgan v. Morgan, 1 Atk. R. 489. The party entering and holding the estate of an infant was held to account. And so in 1 Story's Equ., § 511, cited by Mr. Robinson, where several of the authorities referred to by him are cited, it is stated that where a stranger enters into an infant's lands, he shall account to the infant for rents and profits. This is so at common law, and also where there is even no unity of estate. The same may be said of the cases of Newburgh v. Bickerstaffe, 1 Vern. R. 295, and Cary v. Bertie, 2 Vern. R. 332. After treating these authorities with the utmost respect, it cannot be said that they have any controlling influence upon this case. One tenant in common, as between himself and a stranger, is in possession of the whole. This is the effect of Russell v. Allen, 3 Kernan's R. 173. But, we will add, being in possession and taking the whole of the profits, his co-tenant can compel him to account as bailiff. Code, § 14, p. 586. Sargent v. Parsons, 12 Mass. R. 149, decides that rents and profits cannot be recovered at common law, and that whether the statute of 4 Anne was in force 1860. July Term. Early & wife Friend & als. in Massachusetts or not is immaterial, as the case was not brought under that statute; but see note (a) at the end of the case, for the doctrine we contend for. In Jordan v. Wilkins, 2 Wash. C. C. R., 482, the plaintiff failed because of a misdescription. He claimed that the money sued for had been received for him, when it appeared that it had been received for a company. We think, There the It is supposed that the case of Henderson v. Eason, 9 Eng. L. & E. R. 339, which is referred to and commented on in the 3d vol. Rob. Prac. (new), page 173, has shed a flood of light upon this subject. however, that case differs widely from this. profits were taken, as the court said, not received, so as to bring the case within the operation of the statute of 4 Anne. Here the profits were received. There the subject of the profits was a farm which had been cultivated by the defendant; no waste was alleged. Here the use of the property necessarily impaired its value in perpetuity; the water was exhausted and the coal consumed. These injuries were irreparable. The receipts grew out of the use which necessarily injured the property. To use was to injure and exhaust. Thus this case is clearly distinguishable from Henderson v. Eason, and in sustaining the plaintiff here the court need not interfere with that case. Were it not so, the court might not feel bound to follow that case, in disregard of many others of at least equal respectability. It might not see the substantial difference, as the English court thought it did, between the words receive and take, and upon that criticism, it seems, the case turned. In White v. McCall the court uses this language: "The court is, therefore, of opinion that there is no error in the decree affirming the right of the complainant to call for an account of the rents and profits, or in ascer |