
    Bradish against Schenck.
    Letting =IW¡ a^shigie^cmp, to Mease^of the ót"nei- alone e,,,a-action of tras- : ion’to join the be uíitcn ‘a.ivanjb|'at¿ meilt
    IN error, on certiorari, from a justice’s court. Schenck brought an action of trespass against Bradish, before the justice, for damage done by the hogs of the defendant, by breaking into the enclosure of the plaintiff, and destraying his corn, &c. And the plaintiff produced the certificate of the fence-viewers, appraising- the damage, pursuant to the act, (24th sess. c. 78. s. 16.) at 7 dollars, The defendant pleaded, that the plaiAtiffliad distrained the hogs, and impounded them before the commencement of the suit; and that the plaintiff was not in possession of che land on which the trespass was alleged to have been committed.
    
      It was proved that one Curtiss took the land of the plaintiff, and planted it with corn, upon shares. The hogs of the defendant were twice driven out of the field, and were afterwards impounded by the plaintiff, and about five days thereafter replevied. The action of replevin, grounded on the original distress damagefeasant, was withdrawn soon after it was commenced^ but it did not appear why it was withdrawn, or whether it was settled before the commencement of the action of trespass. The jury found a verdict for the plaintiff, on, which the justice gave judgment.
   Per Curiam.

Letting land upon shares, if for a single crop, is no lease of the land, and the owner alone must bring trespass for breaking the close. (Cro. Eliz. 143.) Schenck and Curtiss were tenants in common off the corn; but the omission to join Curtiss was only to be taken advantage of by pleading it in abatement. (1 Saund. 291. G.)

We ought to intend that the action of replevin was at "an end when this suit was brought, if we can take notice of it all. It was not pleaded, arid the only proof of. its existence was by parol.

The judgment must be affirmed.  