PARK & BATTERSHALL V. BROWNSON HARMON et al. Trustees of WILLIAM WILLIAMS. Where a trustee process issued, after the Revised Statutes came in force, in the form prescribed by the statutes previously in force, such process was dismissed on motion of the principal debtor. TRUSTEE PROCESS, against Brownson Harmon and others, partners, under the firm of B. Harmon & Co., who were sued as trustees of William Williams, of West Troy, in the state of New York. The writ issued after the Revised Statutes came in force, but in the form prescribed by the statutes previously in force; was made returnable at the December term of the county court, 1841, and was served on the 18th day of May, 1841, by having copies of the writ and the officer's return thereon, left with the trustees, and by having a like copy left for the principal debtor with one of the trustees. The process was a summons to the trustees to answer to the plaintiffs upon their declaration against the principal debtor, on a promissory note, dated December 5, 1840, given by the principal debtor to Willis Hunniston or order for fifty dollars, payable four months after date at the Farmers Bank, in Troy, New York, and by said Hunniston indorsed to the plaintiffs. BENNINGTON, February, 1842. At the term of the county court to which the writ was made returnable, the principal debtor moved to dismiss the Park et al. process, because no summons or attachment was therein contained against the principal debtor, and because no service of the process had been made on him. v. Trustees of The county court dismissed the process, with costs, and the plaintiffs excepted to the decision. U. M. Robinson for plaintiffs. The Revised Statutes give jurisdiction to cases where the principal defendant resides out of the state. Rev. Stat. p. 190, $1. The old statutes did not extend to such a case. Stat. p. 149, §1. The principal debtor entered an appearance, but did not plead an abatement, or any dilatory plea, according to the rule of the court. The motion to dismiss was filed out of time. Although the statute may be defective in not providing for the service of the writ, an appearance waives the defect. Stat. p. 191, $9. If the action was dismissed without cause, it is ground of error. Barber v. Ripley, 1 Aik. 80. This case differs from the case of Huntington v. Spooner, 3 Vt. R. 515. In that case the principal defendant did not appear. The trustee pleaded in abatement and did not disclose. That case arose under the old statute. P. Isham for the principal debtor. A trustee process cannot be sustained against an absent debtor, or one who has never had a residence in this state, as no provision is made for the service of the process on him, or making him a party to the proceedings. The Revised Stat. p. 190, §7, provides that the process shall be served on the defendant as a summons; and p. 180, sec. 12, provides that a summons shall be served by giving a copy to the defendant, or leaving it at his "house of usual abode." No service of this writ has been, or could be, made in that manner. Huntington v. Bishop, et al., 3 Vt. R. 515. The revised act provides a different process from what was issued in this case, and requires, as against the principal defendant, the same form of process as issues in all cases where trustees are not summoned. Rev. Stat. 504, 484. In this case, no such process has been issued; and as the matter in February, 1842. demand is not within the original jurisdiction of the county BENNINGTON, court, without a regular trustee process, the proceedings must necessarily be coram non judice, and void. The opinion of the court was delivered by ROYCE, J.-This trustee process was commenced since the Revised Statutes came into operation, but issued in the from prescribed by the previous statutes. The trustees are summoned to come into court, and answer the plaintiffs upon their declaration against the principal debtor, and the writ closes with a direction to the officer to leave a copy of the writ, with his return thereon, in the hands of the trustees for the principal debtor. This is entirely reversing and changing the form given under the existing law. By this the writ and declaration are to issue directly against the principal debtor, as against any other defendant to an action, and the writ is to close with a direction to summon the trustee. The command to the trustee is simply to come into court and make his disclosure; and not, as before, to answer the plaintiff upon his declaration against the principal debtor. The proceeding is thus rendered more analogous to a common attachment of the debtor's goods; and, to carry out the analogy, the plaintiff is allowed, at any time before service is made upon the debtor, to add other trustees. Such is the shape of this kind of process, as authorized in the adjoining states, and it was doubtless adopted here as being better fitted to our system as now established. But, if regarded as mere form, it is a form prescribed by statute, and the only one at present given. It should, therefore, he held imperative, so long, at least, as the objection has not been waived by other proceedings in the cause. The manner of service as to the principal debtor, which was pursued in this instance, though authorized by the repealed act of A. D. 1831, has no direct sanction under the statute now in force; and this, according to the reasoning of the present Chief Justice, in Huntington v. Bishop, 3 Vt. R. 515, would seem to constitute an insuperable objection. We are not required, however, to pass decisively upon this point, as affected by the present statute, since the other is a sufficient ground for affirming the judgment below. Judgment affirmed. Park et al. v. Trustees of BENNINGTON, February, 1842. Hurd v. Darling et al. TRUMAN HURD v. WILLIAM DARLING, ELIAKIM AMEDON, One tenant in common cannot maintain trover against his co-tenant of the same chattel, for any act less than the destruction of his interest therein. If one let a farm to another, to be paid for the use of it in one half the crops, to be delivered on the farm, the lessor is only a tenant in common of the crops, at most, until his portion is severed. Quare. Whether he be strictly a tenant in common even? TROVER, for thirty tons of hay. Plea, not guilty, and trial by jury. On the trial in the county court, the plaintiff gave in evidence a written agreement, or lease, signed by him and the defendant, Darling, but not sealed, of the following tenor, viz: 'Know all men by these presents that I, Truman Hurd, 'of Sandgate, do covenant with and agree to farm let 'to William Darling, of said Sandgate, in the following 'manner, viz: all the land by me let to Daniel Beebe, on the 'south east corner; also, the farm of late owned and occupied 'by Roswell Woodward, to have, hold, and occupy the afore'said premises for the term of two years, with nine cows, ' one yoke of steers, one span of horses; also, one plow, one harrow, and one yoke ready for use; also, one half of the 'seed to be sowed and planted on said farms, and one half 'of the implements necessary for the dairy on said places. 'And I further agree to make up the number of cows to 'twenty at the commencement of the second year, or before, ' and to pay one half of the taxes, except the highway tax, 'and to risk one half of the stock. ' And I, the said William Darling, for myself, agree to 'take and occupy said places for said term, in a good husband'like manner, and deliver to said Truman, on said farm, one 'half of all the crops, except that fed to the stock on said 'places, said produce to be divided by weight and measure, ' and also to keep the tools in order and pay all of the high'way taxes, one half of the other taxes, and to risk one half ' of the stock. 'And we both agree to divide equally between us the in 'crease and profits of said stock, so put on by the said Tru- BENNINGTON, February, 'man. 1842. Hurd v. Signed and witnessed this 1st day of April, 1838.' The plaintiff also introduced testimony tending to prove that the defendant, Darling, occupied the premises, under Darling et al. said contract, or lease, two years; that, in the month of of December, 1839, during the continuance of the lease, the defendant, Darling, refused to take further care of the plaintiff's stock upon the farms mentioned in the lease; that the plaintiff procured one William Baker to feed the hay from the barn, on the premises, to the stock, which then consisted of between thirty and forty head of cattle; that, about two weeks after said Baker took the charge of said hay and cattle, the defendants took the hay in question from said premises; that the hay so taken was nearly all the hay on the premises, and the plaintiff was immediately compelled to remove his stock and hire them kept elsewhere. The defendant introduced testimony tending to show that the plaintiff removed the cows, hogs, and other stock, from the farm in the fall of 1839, taking the profits to himself, and returned them, in part, only, at the setting in of winter, and that the defendant assigned this as a reason for refusing to fodder the stock. It appeared that the defendants, Amedon, Nelson and M. Hurd acted by direction of Darling in removing the hay. The county court dicided that, the testimony being true, the plaintiff was not entitled to recover, and so instructed the jury, who returned a verdict for the defendants, and the plaintiff excepted to the decision and charge of the county court. Sargeant & Miner for plaintiff. We contend that the plaintiff owned the whole property in the bay, and that the defendant, Darling, even before he had refused to fodder the cows, at most, was mere bailee of the stock and hay, and had no other or further interest in the hay, after foddering time had commenced, than to see that it was faithfully fed to plaintiff's stock. There was no stock on the place, except what the plaintiff had put on, and not hay enough to keep the stock through the winter; there was only thirty tons declared for, and that would not be sufficient |