1822.

PETER GRAVENOR v. EDWARD WOODHOUSE, JAMES
THOMAS and ANN his Wife, and THOS. RUSSELL.

Tuesday,
June 25th.

Avowries-
first, by E. W.
and J. T. for
rent due to
plaintiff, as
Secondly, by

them from the

tenant to them.

and Ann his
wife, in right of

E. W., & J.T.

the said Ann,

for rent due to

E. W., & J. T.

and Ann his
wife, in right
from the plain-
tiff, as tenant to

of the said Ann,

and Ann his wife,

be supported

THIS was an action of replevin, for taking the plaintiff's
cattle, goods, and chattels, to which the defendant Ann,
the wife of the above James Thomas, pleaded non cepit, and
the three several defendants avowed, and made cogniz-
ance as follows:-first, the defendants Edward Woodhouse
and James Thomas, in their own right avowed, and the
defendant Russell, as their bailiff, made cognizance for
4901. for seven years rent, at the rate of 70l. per annum,
due to the said defendants Edward and James, from the
plaintiff, as tenant of the premises in question, to them
the said Edward and James. Secondly, the said defend-
ants Edward and James, in their own right avowed, and E. W., & J. T.
the defendant Russell made cognizance for rent due to in right of the
the said Edward and James from the plaintiff, as tenant said Ann, may
of the premises, without stating him to be tenant to them. by evidence of
Thirdly, the defendant Edward, in his own right, and the
defendants James and Ann his wife, in right of the said
Ann, avowed; and the defendant Russell, as their bailiff, his wife.-Where
made cognizance for rent due to the said Edward and replevin gave in
the said Jumes and Ann his wife, in right of the said tornment by
Ann, from the plaintiff, as tenant to the said Edward the plaintiff to
and James, and Ann his wife, in right of the said Ann. years before the
And fourthly, the defendants Edward and James, and of the action,
Ann his wife, in their own right, avowed, and the de- during which
period no rent
fendant Russell, as their bailiff, made cognizance for rent had been de-
due to the said Edward and James, and Ann his wife, the plaintiff
offered to prove
from the plaintiff, as tenant to the said Edward and a
a feoffment to
James, and Ann, in right of the said Ann. Issue was him by the per-

an attornment

from the plain

J. T.

and dun

the avowánts in

evidence an at

them seven

commencement

manded; and

son under

whom they claimed, as well as certain letters written by such person, as being adverse
to their claims, and tending to shew, that he had an equitable interest only, which
were rejected at Nisi Prius, on the ground that the plaintiff could not be permitted
to dispute his tenancy after the attornment, the Court granted a new trial.

taken on the plea of non cepit by the defendant Ann, and the plaintiff pleaded in bar to each of the avowries and cognizances; first, non tenuit, and secondly, that no rent was in arrear; on which, issues were also joined.

At the trial, before Mr. Baron Garrow, at the last assizes for the county of Hereford, the defendants admitted the taking, and put in evidence the following

attornment :

"In the King's Bench.

Between

John Goodtitle, on the demise of Edward
Woodhouse, James Thomas, and Ann his
Wife, plaintiffs;

and

Richard Notitle, defendant.

"I Peter Gravenor, the tenant in possession of the premises in question in this cause, do hereby attorn, and become tenant to the lessors of the plaintiff Edward Woodhouse, James Thomas, and Ann his wife, of and for all that messuage, farm, and lands, called The Parks, situate in the parishes of Binghill, Wellington, and Canon Pyon, in the county of Hereford, from the 2d day of February instant, for one year, and so from year to year, at the yearly rent of 701, subject and without prejudice to any right or claim I may have in equity in the said estate as against the lessors, or the devisees, legatees, or executors of James Woodhouse, Esquire, deceased. witness my hand, this 9th day of February, 1814.

"Witness,

"J. Hawkins."

"Peter Gravenor.

The defendants relied entirely on this attornment, and adduced no evidence, either of a demand or payment of rent, in respect of the premises held by the plaintiff, in pursuance of such instrument, to the time of the distress, nor any other proof in support of their case; when it was objected for the plaintiff, that the attornment did not support either of the avowries, as the plaintiff attorned to the three defendants in their own right, and the avowries stated a joint interest in Thomas, as in right of his wife.

The learned Baron overruled the objection, but reserved the point for the consideration of the Court.

Evidence was then offered by the plaintiff of a feoffment executed to him by the President and Governors of Guy's Hospital, of the farm in question, in July, 1807, under which, seisin was delivered to him by James Woodhouse (the person named in the attornment), under a power of attorney for that purpose, from the hospital, as well as several letters, written by Woodhouse to the officers of the hospital, tending to shew either that the plaintiff was the purchaser on his own account; or that the legal estate was vested in him at the time of the attornment; and that Woodhouse had merely advanced a sum of money by way of mortgage, to enable the plaintiff to make the purchase in the first instance.

The learned Baron, however, ruled that such evidence was not admissible to counteract the effect of the attornment; and more particularly so, as the plaintiff ought nol to be permitted to dispute his tenancy to the defendants after having executed that instrument; but he reserved that point also for the consideration of the Court.

A verdict was then entered for the defendants, for the whole of the seven years rent, with liberty for the plaintiff to move to set it aside, and that a new trial might be

1822.

GRAVENOR

WOODHOUSE.

1822.

GRAVENOR

v.

WOODHOUSE.

granted, if the Court should be of opinion that the avowries were not supported by the attornment, or that the feoffment and letters offered in evidence, had been improperly rejected at the trial.

Mr. Serjeant Hullock, in the last Term, accordingly obtained a rule nisi; and submitted in the first place, that neither of the avowries could be supported by the attornment, which was made by the plaintiff to Edward Woodhouse, James Thomas, and Ann his wife generally, without stating the interest in Thomas to be in right of his wife; and it must therefore be inferred, that each of those three persons was seised individually in their respective and distinct rights, or that James Thomas had a separate interest independently of his wife-and in the two last avowries he claimed only in her right, and not as having any interest of his own abstractedly from her; and as her name was altogether omitted in the two first, they could not be supported at all events. In Polyblank v. Hawkins (a) it was decided, that in covenant by the husband of a reversioner in fee, he must declare on a seisin in fee in himself, and his wife, in right of his wife: and that if he state that he was seised in his demesne as of freehold in right of his wife, it would be bad on special demurrer. -Secondly, the feoffment and letters offered in evidence by the plaintiff, were improperly rejected. Attornments are now rendered almost unnecessary by the statute 4 Anne, c. 16, s. 9, and scarcely exist in any case. Even if they did, they are by no means conclusive evidence of a tenancy : and in Sheppard's Touchstone (b) it is said, that "the end and effect of an attornment is only a bare assent, and therefore it shall not enure or work to pass any interest, to make a bad grant good, nor to give a man a tenancy by disseisin, intrusion, or abatement; neither shall it work by

way of estoppel: and therefore if a man gain a rent issuing out of land, by coercion of distress or otherwise, and the tenant of the land attorn to him; this will not amend his estate." And in Rogers v. Pitcher (a) it was held, that where a tenant, by mistake, or misrepresentation, pays rent to a person not entitled to demand it, he is not precluded by such payment, from giving evidence, on a plea of non tenuit, in replevin against the supposed landlord, to shew that the latter was not entitled to the rent.

Mr. Serjeant Lens, on a former day in this Term, shewed cause, and contended that the legal effect of the attornment was properly set out in the first and second avowries, in which it was stated that the plaintiff was tenant to Woodhouse and Thomas; for, in point of law, the demise was made by them alone; and there was no occasion for any mention to be made of the wife of the latter. At all events, the plaintiff, after executing the attornment, could not dispute the title of the defendants, or shew a title in himself or any other person. In Arnold v. Revoult (b), where, in a declaration of covenant, a demise was stated to be made by the husband alone, and it appeared to have been made by the husband and wife, it was held to be no variance, although the premises demised were the property of the wife before marriage; on the ground that a covenant made to a husband and wife after marriage, must, in legal effect, be considered as a covenant made to the husband alone. In Walsal v. Heath (c), where the husband and wife made a lease for years by parol, it was held that the lease was void against the wife. So, if it were by deed, it would be equally inoperative as to the wife, during coverture, as it would have been de

-(b) Ante, Vol. IV. 66,

(a) 1 Marsh. 541. S. C. 6 Taunt. 202.S. C. 1 Brod. & Bing. 443.- (c) Cro. Eliz. 656.

1822.

GRAVENOR

v.

WOODHOUSE.