Abram Brinsmaid, Administrator of John Collard v. Nathaniel Mayo, 9 Vt. 31

Redfield, J. delivered the opinion.of the Court. The pleadings, as presented to the Court, do not seem to have been settled, with much of that technical precision, which emphatically denominates special pleading to be the science, the language, and the essence of the law. And, indeed, such precision, however desirable, could hardly be expected, in the hurry and confusion of a nisi prius term. But as it was the desire 0f the parties, that the Court should pass upon the questions discussed at tlie bar, we have done it, without much regard to the inartificial manner, in which they are hinted at upon the record.

The second plea in bar is most manifestly not avoided, or in any way affected by the plaintiff’s replication. For it could not affect this judgment, or, indeed, the judgment in ejectment, whether the defendant filed his declaration, and recovered for betterments, or not. It might, in foro conscienticehe entitled to more or less consideration, but could, in no sense, be a ground of confirming or avoiding the judgment in ejectment.

But this was probably intended by the pleader, as merely inducement to that part of the replication, in which plaintiff denies that any recovery was had in the action of ejectment, for the use of the land. Whether such recovery was, or was not had in the action of ejectment, is not material, but only whether the question of use was properly before the Court in that suit. If so, and the matter was adjudicated, it is not material, whether nominal or real damages were assessed.

Or if, in any other mode, the judgment in the former suit is an estoppel upon the plaintiff in this case, then the defendant may well rely upon it as such. It is well settled, that the action of account will only lie where there is a privity of contract, or privity of estate, and will not lie to recover damages, as for a tort. 1 Swift’s Dig. 581. And the action of ejectment is founded upon a supposed wrongful disseizin of plaintiff, by the defendant, and will, from its very nature, exclude the possibility of recovery in account or assumpsit for rent, during defendant’s occupancy, subsequent to the ouster.

And unless defendant was plaintiff’s bailiff before the ouster found, in the action of ejectment, there would not seem to be any sufficient ground for this action. That is not relied upon. Whether after the ouster, the recovery in ejectment of ■nominal damages will conclude the plaintiff’s right to recover further damages, it may be sufficient to say, that such has always been the practice of Courts in this State, since the statute giving the plaintiff the right to recover damages, as for mesne profits, in ejectment.

And such, it is believed, is the general understanding of the profession.' It is considered, that that statute has, in this State, merged the action of trespass for mesne profits, with the action of ejectment. And so of course, there could be but one recovery for the same cause of action. This plea in bar would. thus seem to be a sufficient answer to the declaration, as it applies to the same time there relied upon. The first plea in bar shows that Collard had convej ed the land to Brinsmaid, before his decease, and at the time of his decease, had no interest whatever in the same.

This would seem to be a sufficient answer to the plaintiff’s claim to recover for the use of the land, since the decease of Collard, in his representative capacity. But it is said that Brinsmaid’s recovery, in ejectment, of this same land, as administrator of Collard, estops the defendant to rely upon this plea. That is undoubtedly true. But when an estoppel is a matter of record, and thus capable of being pleaded, and the party has an opportunity of pleading it, it must always be so pleaded, or it will be considered as waived. Here this plea is demurred to generally.

And although we might hold in some cases, that a matter of this kind, which was pleaded generally, and not as an estoppel, was conclusive upon the right, nor could we surely do that, when the matter, relied upon, was not even pleaded, except to another part of the case. This plea, then, would seem to be a sufficient answer to that portion of the declaration, which it professes to answer. In looking into the declaration, we are satisfied it is bad.

This is an action of account between tenants in common, of lands, which did not lie, at common law, except upon special appointment of one tenant to be the bailiff of the other, which is not relied upon here. This is a declaration against defendant, as bailiff of the rents of the common land, which he is made liable to account for, in this form of action, by statute. The action is given as between tenants in common. In other words, it is made to depend upon privity of estate. This privity of estate should be distinctly alleged, as the foundation of the action.

It is here alleged, that defendant is seized of one moiety, as tenant in common with plaintiff, but it is not alleged that plaintiff or his intestate, were ever seized of the other moiety, and for any thing apparent, there might have been numerous owners of the other moiety, and all tenants in common with each other, and with defendant and plaintiff. For tenants in common may be seized of an equal portion of the common estate. How this is, does not appear. If it be as supposed, the only remedy is in Chancery. Wiswell v. Wilkins, 4 Vt. Rep. 137.

It is not alleged, except by way of inference, that defendant had received “ more than his just share of the profits of the estate,” which is the only ground upon which the statute gives the remedy here sought. And the allegation, that the defendant was to account for what he received, more than his just share, and that he refused to account at all, might be very consistent with his not having received more than his just share. Such has been the construction given to'the English statute, 4 Anne C. 16., and such we think the only rational construction. Wheeler v. Horne, Willes, 208.

The declaration should allege, that the plaintiff and defendant were tenants in common of the estate, setting forth, specifically, of what particular portion each was seized, so that the particular relation of the parties, in regard to their respective interests in the same, could be seen by the Court. And the declaration should allege that defendant had received more than his just share of the profits, within the true intent of the terms of the statute. In both these particulars we think the declaration bad. Upon every ground the defendant is entitled to have judgment. The plaintiff moved for leave to amend.

As the case came here by appeal, the judgment below was vacated by the appeal, and leave to amend was granted plaintiff, on terms.