Dickerson, J.
This is an action of special assumpsit under the statute, to recover the rents, profits and income alleged to be due the plaintiff from the defendant’s intestate, for the occupancy of certain land in Kennebunkport. The plaintiff alleged a tenancy in common of the demanded premises, in three equal shares, between himself, Eliza B. Reed and the defendant’s intéstate, Thomas Currier; and that said Currier took the whole of the rents, profits and income of the estate till his death, against the plaintiff’s objection. The plaintiff also avers a demand on said Currier in his lifetime, and a refusal, and a demand on the defendant.
The defendant, in her specifications of defence alleges— (1,) the statute of limitations, (2,) the consent of the plaintiff and his guardian to the occupancy and taking of the profits of certain real estate without recourse, (3,) the expenditure on the premises by her intestate of more than the value of the rents and profits, and (4,) that Eliza B. Reed is the real plaintiff in this action. By a rule of Court and the law applicable to specifications of defence, all matters set forth in the writ and declaration and not specifically denied in the specifications of defence, are regarded as admitted for the purposes of the trial. IX Rule of Court; Day v. Frye, 41 Maine, 326; Hart v. Hardy, 42 Maine, 196; Clough v. Crossman, 47 Maine, 349; Skillings v. Norris, 50 Maine, 72.
[90]*90The tenancy in common, caption of the profits and the' demand and refusal are admitted by the pleadings. Neither the objection that Thomas Currier occupied the premises as executor, nor that Henry Cutler, father of the plaintiff, was tenant by curtesy of the same, is open to the defendant. The limits she has prescribed for herself preclude her from' setting up any such grounds of defence. Even if these objections were open to her, she could not avail herself of them on exceptions to the refusal of the presiding Judge to order a nonsuit on her motion, since such refusal is a matter of discretion and affords no ground of exception. French v. Stanley, 21 Maine, 518; Bragdon v. Appleton Mut. F. Ins. Co., 42 Maine, 259.
1. The presiding Judge instructed the jury that § 1, c. 61, of the Public Laws of 1848, changed the common law in reference to this case. The Act is entitled "An Act giving further remedies to tenants in common.” It provides that " whenever any joint tenant or tenant in common shall take and receive the whole of the rents, profits or income of the estate, or more than his share of the same, without the consent of his co-tenant, and shall refuse, Avith-in a reasonable time after demand, to deliver and pay to such co-tenant his share of such rents, profits or income, or of the joint proceeds of the same, the said co-tenánt, so deprived of his share as aforesaid, may have and maintain an action of special assumpsit to recover his said share against the tenant withholding the same.” This provision is reenacted in the revised code. R. S., c. 95, § 16.
It Avas a familiar principle of the common law, older than Lord Coke, that one tenant in common could not maintain an action against his co-tenant for taking the whole profits of the joint estate. Co. Lit., Lib. 3, § 323; 2 Black, Com., 194.
By statute 4 of Anne, c. 16, hoAvever, it was provided that an action of account might be brought by one joint tenant or tenant in common against the other, as bailiff, for receiving more than his joint share or proportion of the [91]*91rents and profits. In construing this statute, Lord Holt held that indebitatus assumpsit lies when the action of account may be maintained; and this equitable construction has been continued by succeeding Judges, until the action of account has been substantially superseded by the action on the case in the nature of account, or for money had and received. The application of this doctrine, however, has been restricted to cases where the money has been actually received, and the liability to account has resulted in a duty to pay money, or where the defendant holds the share as bailiff of the plaintiff, or the occupation has been by consent. Brigham v. Eveleth, 9 Mass., 538; Munroe v. Luke, 1 Met., 459; Jones v. Harriden, 9 Mass., note, 539; Buck v. Stafford, 31 Maine, 34; Gowen v. Shaw, 40 Maine, 50; Dyer v. Wilbur, 48 Maine, 287.
In the case at bar the evidence negatives all these conditions. Whatever advantage the defendant’s intestate derived from the premises was received from his personal occupancy of them. We have seen that neither the ancient common law, nor the statute of 4 Ann, as incorporated into the common law, affords any remedy in such cases. The statute of 1848, c. 61, § 1, was passed to meet this omission in the common law. The statute is remedial, and should be construed so as to give effect to the remedy, pro-’ vided such construction is not inconsistent with the language used or the fundamental law.
The words "taking and receiving the rents, profits or income,” have no technical or recondite signification, but are to be understood according to their ordinary acceptation. Afarmer "takes” or "receives” the products of his farm. lie "takes” them by his own efforts, and "receives” them from the hand of mother earth. Ho is an actor or a recipient, as he sustains the one or the other of these relations. Ee-ceiving is one of the modes of taking. These words are oftentimes used synonymously, and have substantially the same meaning in the statute, though, in strict verbal accuracy, the one more appropriately expresses the idea of ac-[92]*92ceptmg rents and tbe other that of gathering crops. The construction contended for by the counsel for the defendant would render the statute nugatory in the very particular in which it was intended to remedy the defect of the common law. The presiding Judge correctly held' that the statute changed the common law in respect to this case, and that it applies as well to the cases of personal occupancy by the co-tenant as where he receives rent from a sub-tenant.
2. Nor was it error in the Judge at Nisi Prius, to rule that the action might be maintained, though the defendant’s intestate did not occupy all the joint estate. The language of the statute is — "the whole of the rents, profits or income of the joint estate,” not of all the joint estate. If the joint estate consists of several distinct parcels, each parcel is "the joint estate” of the co-tenants though it does, not embrace all their joint estate. Its character, as joint estate, is not affected by its quantity. To deny, for instance, that a dwelling-house is the joint estate of several co-tenants, because they own other real estate in common, would be absurd. To withhold the statute remedy from a party, because his co-tenant had not " taken and received the rents, profits or income” of all the joint estate, would be to sanction the lesser and punish the greater wrong, and to deny to the injured party all remedy in numerous cases.
3. The instruction that the plaintiff, being a minor, was incapable of giving consent to the occupancy of the defendant’s intestate, is unobjectionable. The minority of the plaintiff, and the proof that he had no guardian, were sufficient evidence of a want of consent, even if the burden of proof to show that fact had been upon the plaintiff.
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Dickerson, J.
This is an action of special assumpsit under the statute, to recover the rents, profits and income alleged to be due the plaintiff from the defendant’s intestate, for the occupancy of certain land in Kennebunkport. The plaintiff alleged a tenancy in common of the demanded premises, in three equal shares, between himself, Eliza B. Reed and the defendant’s intéstate, Thomas Currier; and that said Currier took the whole of the rents, profits and income of the estate till his death, against the plaintiff’s objection. The plaintiff also avers a demand on said Currier in his lifetime, and a refusal, and a demand on the defendant.
The defendant, in her specifications of defence alleges— (1,) the statute of limitations, (2,) the consent of the plaintiff and his guardian to the occupancy and taking of the profits of certain real estate without recourse, (3,) the expenditure on the premises by her intestate of more than the value of the rents and profits, and (4,) that Eliza B. Reed is the real plaintiff in this action. By a rule of Court and the law applicable to specifications of defence, all matters set forth in the writ and declaration and not specifically denied in the specifications of defence, are regarded as admitted for the purposes of the trial. IX Rule of Court; Day v. Frye, 41 Maine, 326; Hart v. Hardy, 42 Maine, 196; Clough v. Crossman, 47 Maine, 349; Skillings v. Norris, 50 Maine, 72.
[90]*90The tenancy in common, caption of the profits and the' demand and refusal are admitted by the pleadings. Neither the objection that Thomas Currier occupied the premises as executor, nor that Henry Cutler, father of the plaintiff, was tenant by curtesy of the same, is open to the defendant. The limits she has prescribed for herself preclude her from' setting up any such grounds of defence. Even if these objections were open to her, she could not avail herself of them on exceptions to the refusal of the presiding Judge to order a nonsuit on her motion, since such refusal is a matter of discretion and affords no ground of exception. French v. Stanley, 21 Maine, 518; Bragdon v. Appleton Mut. F. Ins. Co., 42 Maine, 259.
1. The presiding Judge instructed the jury that § 1, c. 61, of the Public Laws of 1848, changed the common law in reference to this case. The Act is entitled "An Act giving further remedies to tenants in common.” It provides that " whenever any joint tenant or tenant in common shall take and receive the whole of the rents, profits or income of the estate, or more than his share of the same, without the consent of his co-tenant, and shall refuse, Avith-in a reasonable time after demand, to deliver and pay to such co-tenant his share of such rents, profits or income, or of the joint proceeds of the same, the said co-tenánt, so deprived of his share as aforesaid, may have and maintain an action of special assumpsit to recover his said share against the tenant withholding the same.” This provision is reenacted in the revised code. R. S., c. 95, § 16.
It Avas a familiar principle of the common law, older than Lord Coke, that one tenant in common could not maintain an action against his co-tenant for taking the whole profits of the joint estate. Co. Lit., Lib. 3, § 323; 2 Black, Com., 194.
By statute 4 of Anne, c. 16, hoAvever, it was provided that an action of account might be brought by one joint tenant or tenant in common against the other, as bailiff, for receiving more than his joint share or proportion of the [91]*91rents and profits. In construing this statute, Lord Holt held that indebitatus assumpsit lies when the action of account may be maintained; and this equitable construction has been continued by succeeding Judges, until the action of account has been substantially superseded by the action on the case in the nature of account, or for money had and received. The application of this doctrine, however, has been restricted to cases where the money has been actually received, and the liability to account has resulted in a duty to pay money, or where the defendant holds the share as bailiff of the plaintiff, or the occupation has been by consent. Brigham v. Eveleth, 9 Mass., 538; Munroe v. Luke, 1 Met., 459; Jones v. Harriden, 9 Mass., note, 539; Buck v. Stafford, 31 Maine, 34; Gowen v. Shaw, 40 Maine, 50; Dyer v. Wilbur, 48 Maine, 287.
In the case at bar the evidence negatives all these conditions. Whatever advantage the defendant’s intestate derived from the premises was received from his personal occupancy of them. We have seen that neither the ancient common law, nor the statute of 4 Ann, as incorporated into the common law, affords any remedy in such cases. The statute of 1848, c. 61, § 1, was passed to meet this omission in the common law. The statute is remedial, and should be construed so as to give effect to the remedy, pro-’ vided such construction is not inconsistent with the language used or the fundamental law.
The words "taking and receiving the rents, profits or income,” have no technical or recondite signification, but are to be understood according to their ordinary acceptation. Afarmer "takes” or "receives” the products of his farm. lie "takes” them by his own efforts, and "receives” them from the hand of mother earth. Ho is an actor or a recipient, as he sustains the one or the other of these relations. Ee-ceiving is one of the modes of taking. These words are oftentimes used synonymously, and have substantially the same meaning in the statute, though, in strict verbal accuracy, the one more appropriately expresses the idea of ac-[92]*92ceptmg rents and tbe other that of gathering crops. The construction contended for by the counsel for the defendant would render the statute nugatory in the very particular in which it was intended to remedy the defect of the common law. The presiding Judge correctly held' that the statute changed the common law in respect to this case, and that it applies as well to the cases of personal occupancy by the co-tenant as where he receives rent from a sub-tenant.
2. Nor was it error in the Judge at Nisi Prius, to rule that the action might be maintained, though the defendant’s intestate did not occupy all the joint estate. The language of the statute is — "the whole of the rents, profits or income of the joint estate,” not of all the joint estate. If the joint estate consists of several distinct parcels, each parcel is "the joint estate” of the co-tenants though it does, not embrace all their joint estate. Its character, as joint estate, is not affected by its quantity. To deny, for instance, that a dwelling-house is the joint estate of several co-tenants, because they own other real estate in common, would be absurd. To withhold the statute remedy from a party, because his co-tenant had not " taken and received the rents, profits or income” of all the joint estate, would be to sanction the lesser and punish the greater wrong, and to deny to the injured party all remedy in numerous cases.
3. The instruction that the plaintiff, being a minor, was incapable of giving consent to the occupancy of the defendant’s intestate, is unobjectionable. The minority of the plaintiff, and the proof that he had no guardian, were sufficient evidence of a want of consent, even if the burden of proof to show that fact had been upon the plaintiff. The law does not involve the inconsistency of presuming the consent of a party against his interest, when, at the same time, it holds such party incapable of giving his consent.
After a careful examination, we are unable to discover any error in the instructions of the presiding Judge upon the subject of demand and refusal, or the effect of the statute of limitations. No demand upon the defendant’s intes-[93]*93late was necessary; and demand upon the defendant was sufficient. The neglect of the defendant to make answer to the demand made upon her, for so long a time, was properly construed to be a refusal to account.
Chapter 81, § 100, of the Revised Statutes, giving minors six years after they become of age to bring actions of as-sumpsit, is a perfect answer to the defendant’s objection in regard to the statute of limitations.
The instructions of the Judge at Nisi Prius are full upon the matters presented in the requested instructions, and correctly present the rules of law applicable to all the points raised in the case. So far, therefore, as the requested instructions differ from the instructions given, they were properly refused. Exceptions overruled.
Judgment on the verdict.
Appleton, C. J., Cutting, WaltoN and Danpobth, jj., concurred.