Eastman, J.
This action is founded upon the fifth and sixth sections of chapter 180 of the Revised Statutes. .These sections are as follows:
u Section 5. Any co-tenant of real estate may recover by action of assumpsit against one or more of Ms co-tenants, his just share of the value of any trees destroyed, or cut or carried away by such co-tenant, which were standing, lying or growing on such real estate, or of any other property attached thereto and destroyed, severed or carried away by such co-tenant.”
“ Section 6. If any co-tenant of any real estate shall hold the exclusive possession and income thereof, against the will and without the consent of his co-tenant, the co-tenant so excluded may, in an action of assumpsit, recover of the person holding such possession, the full amount of all damages he may have sustained thereby.”
[528]*528The provisions of these sections are comparatively new. No such action exists at common law; and in order to maintain a suit founded upon the statute, sufficient must be stated in the declaration to bring the plaintiff within the provisions enacted. Where a remedy is given by statute, and does not exist at common law, the declaration must be special upon the statute. Atkinson & a. v. Banwell & a., 2 East, 505; Bath v. Freeport, 5 Mass. Rep. 326; Andover v. Salem, 3 Mass. Rep. 438.
The statute changes the manner of pleading for the grievances alleged. It gives a new remedy, which exists only by the statute — a special assumpsit for the causes set forth.
A general indebitatus assumpsit could not be sustained, because therefrom nothing would appear showing that the parties were tenants in common, and that the one had the right to prosecute the other for trees cut; and proof that the defendant cut and carried away certain timber from the premises would be showing a trespass, if anything, instead of an implied assumpsit; and a variance between the evidence and the declaration would at once appear.
It is true the court will take notice of all public statutes, such as this is; but where it changes the common law, sufficient facts must be averred in the declaration to show that the party claims under the statute ; enough must appear to constitute the liability created by the statute.
We have already decided that, to sustain an action upon the fourth section of the same chapter, which provides that any co-partner or joint owner may maintain an action of assumpsit against one or more of his co-partners, to recover his share of any goods or chattels, &c., the declaration must be special; and that under the general counts evidence respecting partnership dealings would be inadmissible. Wright v. Cobleigh, 1 Foster’s Rep. 339.
The plaintiff’s writ contains three counts; the last of which, being a general one, cannot, according to the views [529]*529expressed, sustain his action. The other two were intended to be founded upon the statute ; and from them we gather that the plaintiff claims that, being co-tenant with the defendant of the premises described, the defendant cut and carried away one hundred and fifty cords of wood, of the value of $150, of which the plaintiff demands the one half, being $75, and that the defendant entered upon and cultivated one acre of the land, and took the crops, amounting to $24, of which the plaintiff claims the one half.
Whether the plaintiff has drawn his declaration sufficiently accurate, or whether there are defects in the first two counts, as suggested by the defendant’s counsel, we do not propose to consider, as that question does not necessarily arise upon this case. In the disposition of the question whether the set off can be allowed, it is enough for us to see that the first and second counts are evidently intended to be founded upon the statute. Neither do we propose to consider the extent to which the sections of the statute may go in providing a remedy for various controversies between co-tenants; and we have given the plaintiff’s declaration the examination which we have, for the purpose of better understanding of the defendant’s proposition to set off the claims stated.
Now what does the plaintiff recover, under the fifth section of the statute, for the cutting and carrying away of trees standing, lying, and growing upon the real estate ? It is, in the words of the statute, “ his just share of the value.” It is an unliquidated matter, that is to be examined, passed upon, and settled by a jury; and although the action of assumpsit is given by the statute, yet the cause of action is evidently an unsettled matter, in its nature tortious. And so with the sixth section; what does the plaintiff recover by its provisions? It is the full amount of all damages he may have sustained by reason of his co-tenant having held the exclusive possession and income of the premises, against his will. The amount recoverable under the provisions of this [530]*530section appears to be, in its nature, more general and unsettled than that prescribed in the other section; it is damages.
The set off which the defendant seeks to have allowed against the plaintiff’s claims is similar in its character, in some respects, to the plaintiff’s cause of action. We would remark, however, that by far the greater portion of the items, such as the pasturage of the cattle, could not, it would seem, be a subject of action under the statute, unless it should be made to appear that Smith was in the exclusive possession of the premises against the will and without the consent of Woodman.
But according to the view which we have taken of the matter, it is unnecessary to institute any inquiry upon this point. It is only by force of the statute, giving the action of assumpsit to co-tenants in specified cases, the sections of which we have cited, that this set off can, in any way, be allowed, and upon the ground that it is a mutual debt or demand, growing out of the same transaction. If there are mutual debts or demands between the plaintiff and defendant, at the time of the commencement of the plaintiff’s action, one debt or demand may be set off against the other. Rev. Stat. ch. 187, § 4. But are these mutual debts or demands ? Or do they grow out of the same transaction between the parties ? The plaintiff claims that between the first day of December, 1847, and the first day of March, 1848, the defendant cut and carried away from the premises one hundred and fifty cords of wood; and that between the first day of April, 1850, and first day of November following, the defendant cultivated one acre of the land and took the crops. These are the grievances of which the plaintiff complains. On the other hand, the .defendant’s proposed set off is comprised of five items of pasturing during the year 1848, and twenty-five bushels of oats the same year, for the year 1849, of six items of pasturing, and in 1850, of three items for the same. Also in 1849 and 1850, [531]*531for labor upon the premises and manure put on the land, &c.
A statement of the claims of the parties shows at once, we think, that they are not those mutual debts and demands spoken of in the statute; and the giving to the plaintiff the action of assumpsit, in such cases, cannot change the law regulating set offs. It is plain, too, that the items specified in the set off relate to different transactions from those of which the plaintiff complains. They, perhaps, grow out of the fact that the plaintiff and defendant are co-tenants.
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Eastman, J.
This action is founded upon the fifth and sixth sections of chapter 180 of the Revised Statutes. .These sections are as follows:
u Section 5. Any co-tenant of real estate may recover by action of assumpsit against one or more of Ms co-tenants, his just share of the value of any trees destroyed, or cut or carried away by such co-tenant, which were standing, lying or growing on such real estate, or of any other property attached thereto and destroyed, severed or carried away by such co-tenant.”
“ Section 6. If any co-tenant of any real estate shall hold the exclusive possession and income thereof, against the will and without the consent of his co-tenant, the co-tenant so excluded may, in an action of assumpsit, recover of the person holding such possession, the full amount of all damages he may have sustained thereby.”
[528]*528The provisions of these sections are comparatively new. No such action exists at common law; and in order to maintain a suit founded upon the statute, sufficient must be stated in the declaration to bring the plaintiff within the provisions enacted. Where a remedy is given by statute, and does not exist at common law, the declaration must be special upon the statute. Atkinson & a. v. Banwell & a., 2 East, 505; Bath v. Freeport, 5 Mass. Rep. 326; Andover v. Salem, 3 Mass. Rep. 438.
The statute changes the manner of pleading for the grievances alleged. It gives a new remedy, which exists only by the statute — a special assumpsit for the causes set forth.
A general indebitatus assumpsit could not be sustained, because therefrom nothing would appear showing that the parties were tenants in common, and that the one had the right to prosecute the other for trees cut; and proof that the defendant cut and carried away certain timber from the premises would be showing a trespass, if anything, instead of an implied assumpsit; and a variance between the evidence and the declaration would at once appear.
It is true the court will take notice of all public statutes, such as this is; but where it changes the common law, sufficient facts must be averred in the declaration to show that the party claims under the statute ; enough must appear to constitute the liability created by the statute.
We have already decided that, to sustain an action upon the fourth section of the same chapter, which provides that any co-partner or joint owner may maintain an action of assumpsit against one or more of his co-partners, to recover his share of any goods or chattels, &c., the declaration must be special; and that under the general counts evidence respecting partnership dealings would be inadmissible. Wright v. Cobleigh, 1 Foster’s Rep. 339.
The plaintiff’s writ contains three counts; the last of which, being a general one, cannot, according to the views [529]*529expressed, sustain his action. The other two were intended to be founded upon the statute ; and from them we gather that the plaintiff claims that, being co-tenant with the defendant of the premises described, the defendant cut and carried away one hundred and fifty cords of wood, of the value of $150, of which the plaintiff demands the one half, being $75, and that the defendant entered upon and cultivated one acre of the land, and took the crops, amounting to $24, of which the plaintiff claims the one half.
Whether the plaintiff has drawn his declaration sufficiently accurate, or whether there are defects in the first two counts, as suggested by the defendant’s counsel, we do not propose to consider, as that question does not necessarily arise upon this case. In the disposition of the question whether the set off can be allowed, it is enough for us to see that the first and second counts are evidently intended to be founded upon the statute. Neither do we propose to consider the extent to which the sections of the statute may go in providing a remedy for various controversies between co-tenants; and we have given the plaintiff’s declaration the examination which we have, for the purpose of better understanding of the defendant’s proposition to set off the claims stated.
Now what does the plaintiff recover, under the fifth section of the statute, for the cutting and carrying away of trees standing, lying, and growing upon the real estate ? It is, in the words of the statute, “ his just share of the value.” It is an unliquidated matter, that is to be examined, passed upon, and settled by a jury; and although the action of assumpsit is given by the statute, yet the cause of action is evidently an unsettled matter, in its nature tortious. And so with the sixth section; what does the plaintiff recover by its provisions? It is the full amount of all damages he may have sustained by reason of his co-tenant having held the exclusive possession and income of the premises, against his will. The amount recoverable under the provisions of this [530]*530section appears to be, in its nature, more general and unsettled than that prescribed in the other section; it is damages.
The set off which the defendant seeks to have allowed against the plaintiff’s claims is similar in its character, in some respects, to the plaintiff’s cause of action. We would remark, however, that by far the greater portion of the items, such as the pasturage of the cattle, could not, it would seem, be a subject of action under the statute, unless it should be made to appear that Smith was in the exclusive possession of the premises against the will and without the consent of Woodman.
But according to the view which we have taken of the matter, it is unnecessary to institute any inquiry upon this point. It is only by force of the statute, giving the action of assumpsit to co-tenants in specified cases, the sections of which we have cited, that this set off can, in any way, be allowed, and upon the ground that it is a mutual debt or demand, growing out of the same transaction. If there are mutual debts or demands between the plaintiff and defendant, at the time of the commencement of the plaintiff’s action, one debt or demand may be set off against the other. Rev. Stat. ch. 187, § 4. But are these mutual debts or demands ? Or do they grow out of the same transaction between the parties ? The plaintiff claims that between the first day of December, 1847, and the first day of March, 1848, the defendant cut and carried away from the premises one hundred and fifty cords of wood; and that between the first day of April, 1850, and first day of November following, the defendant cultivated one acre of the land and took the crops. These are the grievances of which the plaintiff complains. On the other hand, the .defendant’s proposed set off is comprised of five items of pasturing during the year 1848, and twenty-five bushels of oats the same year, for the year 1849, of six items of pasturing, and in 1850, of three items for the same. Also in 1849 and 1850, [531]*531for labor upon the premises and manure put on the land, &c.
A statement of the claims of the parties shows at once, we think, that they are not those mutual debts and demands spoken of in the statute; and the giving to the plaintiff the action of assumpsit, in such cases, cannot change the law regulating set offs. It is plain, too, that the items specified in the set off relate to different transactions from those of which the plaintiff complains. They, perhaps, grow out of the fact that the plaintiff and defendant are co-tenants. But they are acts distinct and independent from those set forth in the plaintiff’s declaration.
The cases, in this State, where unliquidated damages have been considered by way of set off, as growing out of the same transaction, are where a quantum meruit has been sustained, after a breach of contract, and the defendant has been permitted to show the extent of damage arising from the non-fulfilment of the contract, by way of reducing the amount the plaintiff shall recover. And the amount which the defendant, in such cases, has allowed to him, is not, technically and properly, a set off, but his evidence is admitted, as showing what sum the plaintiff ought in justice to recover; how much, if any thing, under all the circumstances, he deserves to have. Britton v. Turner, 6 N. H. Rep. 481.
And so in other States, where set offs have been allowed, which are not mutual debts and demands, but which appear to sound in damages, it has been done upon like equitable principles, where the matter to be investigated is strictly one transaction, which cannot be separated, and the amount allowed the defendant is by way of reducing the plaintiff’s damages rather than as a legal set off, or else it has been done by virtue of special statutes.
But such is not the fact in this case. The matters in dispute, although growing out of the co-tenancy, are separate and independent acts, requiring independent evidence; and [532]*532the set off, like the claim of the plaintiff, is a subject uncertain and unliquidated, to be settled by the jury. The amount which the defendant could have allowed to him, if the set off should be received, would be his just share of the value of the trees cut, or other property, attached to the real estate, and carried away, and the full amount of all damages he might have sustained by reason of the plaintiff’s having held the exclusive possession and income of the premises against the will and consent of the defendant. And it would seem that these matters can no more be the subject of a set off than one unliquidated contract can be against another. The first count of the plaintiff’s declaration is for trees cut in the winter of 1847-8. Now suppose the plaintiff had cut trees in 1846, could the.latter be set off against the former ? We think there is no rule of law by which it could be done, and that there is no rule by which the defendant’s set off can be admitted. There is nothing in the statute giving this action to co-tenants that can warrant it, and nothing in our general statute upon the subject of set offs that will permit it. It is not a mutual debt or demand, within the meaning of our statute or the practice of the courts. Gordon v. Bowne, 2 Johns. 150; United States v. Wells, 2 Wash. C. C. Rep. 161; Brown v. Cuming, 2 Caines 33; Hepburn v. Hoag, 6 Conn. Rep. 613; Crowningshield v. Robinson, 1 Mason’s 93 ; Wilmot v. Hurd, 11 Wend. 584; Sickles v. Fort, 15 Wend. 559; Adams v. Manning, 17 Mass. Rep. 178.
Should the defendant resort to his action for the recovery of his claim and obtain judgment, the court might order the judgments to be set off. This they have the power to do, independent of any statutory regulation. Courts of law have power to setoff mutual judgments. Wright v. Cobleigh, 3 Foster’s Rep. 32; Hutchins v. Riddle, 12 N. H. Rep. 464; Barrett v. Barrett, 8 Pick. 342; Graves v. Woodbury, 4 Hill’s 559; Gould v. Parlin, 7 Greenl. 82; Dennie [533]*533v. Elliot, 2 H. Black. 587; Brewerton v. Harris, 1 Johns. 145; Goodnow v. Buttrick, 7 Mass. Rep. 140.
And courts may withhold giving judgment for-the plaintiff, until the defendant, by using due diligence, may obtain his judgment. Adams v. Manning, 17 Mass. Rep. 180. In this way a defendant is protected and suffers no wrong; while a jury is relieved from the confusion and uncertainty that must necessarily attend the trial of a case where different unliquidated amounts are required to be passed upon by them.
The ruling of the court, in excluding the set off, was correct.
Set of inadmissible.