his landlord, who has entrusted him with possession; so on the other, it is most just so far to guard the tenant, as not to subject him to pay his rent twice over, and thereby put him to the trouble and expense of an action to recover that money which he has been compelled to pay. The supposed generality of this rule appears to have been first departed from in England d. Syburn v. Slade (a), where Lord Kenyon and the other Judges of the Court of King's Bench, confirmed an opinion of Mr. Justice Gould, at Nisi Prius; and held that it was competent for a tenant to shew that his landlord's title had expired. The same point was determined in Doe d. Jacksonv.Ramsbotham (b); and Mr. Justice Bayley there observed, that there was an authority for it, adverting, no doubt, to the case of England v. Slade. Payment of rent, in all cases, furnishes a strong presumption against the tenant, and is always a good prima facie case for the landlord; yet even in such a case, if the rent has been paid under a misrepresentation, the tenant is not estopped from resisting further payment, after discovery of such misrepresentation. That was decided in this Court in the case of Rogers v. Pitcher, where Lord Chief Justice Gibbs is reported to have said (c), "the defendant contends, that because he bad induced the plaintiff to pay the rent to him once or twice, in ignorance too of the facts, she is bound to pay it to him for ever, though she is also bound to pay it to Mrs. Baker. (to whom the estate had been previously assigned). Justice speaks very forcibly against such a position; but if we found any law, by which a person, having paid rent on one occasion, was ever after bound by that payment, we must decide accordingly. But there is no such law." A variety of other cases might be put, where a tenant might be excused from payment of rent

(a) 4 Term Rep. 682.544.

-(6) 3 Maul. & Selw, 516,

(c) 1 Marsh,

1822.

GRAVENOR

2.

WOODHOUSE.

to a person not really entitled to it. Here, however, the only question is, whether under the circumstances now before the Court, there is any reason for an exception to the admitted general rule? We are of opinion there is. Without forming any judgment at present, as to the admissibility or inadmissibility of any particular evidence, it is sufficient to say, that there is enough suspicion in the case to induce us to require further consideration. As to the attornment by the plaintiff, it does not appear to have been given voluntarily by him, but to prevent the operation of a previous proceeding by ejectment; and it seems that he was in possession, before any title had, in point of fact, accrued to the defendants; he most probably came in under their testator, and under whom they now claim. The attornment is dated on the 9th February, 1814, and the rent was to run from the 2d February preceding. The rent, too, is 70l. per annum; and yet from the date of the attornment to the time of the distress, a period of seven years, it appears that no rent (although it is considerable) has ever been demanded or paid. That of itself is a circumstance of extremely strong suspicion. It is but reasonable to conjecture that the defendants had some very cogent reason for procuring an attornment from the plaintiff at the time it was made; and yet they have never acted on it since, until the time of the distress, for the replevying of which this action was brought. Although this may be satisfactorily explained hereafter, it is an additional reason for sending this case down to a further enquiry. It may be said, that the proceedings between the parties in the Court of Chancery may be a reason why the defendants have not demanded the rent from the plaintiff: and it appears from the report of the case of Woodhouse v. Meredith, that there has been much litigation between them; but the circumstances, as stated in the pleadings, and to be collected from the evidence in that case, tend rather to excite than to allay suspi

IN THE THIRD YEAR OF GEO. IV.

cion. But on the facts of this case only, as disclosed at the trial, and as coupled with the report of my learned Brother who tried it, we are of opinion that the rule for a new trial must be made absolute.

I need only further add, that my Lord Chief Justice not having been present when cause was shewn against the rule, he has taken no part in the consideration of this

1822.

GRAVENOR

V.

WOODHOUSE.

case.

Rule absolute.

CHRISTIE V. WALKER, and four others.

He

MR. Serjeant Hullock, on a former day in this Term, had obtained a rule, calling on the plaintiff to shew cause why the declaration, which had been delivered against the defendant Walker, and in which all five had been named, as well as the subsequent proceedings thereon, might be set aside for irregularity, with costs. founded his motion on an affidavit, which stated, that "on the 4th May last, the plaintiff sued out a bailable capias against the defendant Walker alone, returnable in one month of Easter, under which Walker was arrested, and put in and perfected bail above in the last Term. That on the 11th May following, the plaintiff sued out a serviceable capias against the other four defendants, in which Walker was not named, returnable on the morrow of the Ascension. That on the 11th June instant, a declaration of assumpsit, as of the present Trinity Term, was delivered against the defendant Walker, in which the four other defendants were joined ; and that on the 15th, a plea was demanded. Under these circumstances, the learned Serjeant submitted, that the writs should either have been

Tuesday, June 25th.

Where a plain

tiff has a joint cause of action against several

defendants, he may sue out bailable process against one, and serviceable against the others. Where, therefore, the

plaintiff sued

out bailable process against A., on which

he wrest ed, and put in

bail, and a

week afterwards sued out

serviceable

process against

B. C. D. and E.

and delivered a

declaration to

4. as against him and the fendants jointTerm after the ly, as of the writs were re

four other de

turnable :

Held, that such declaration was not irregular, the object of the process being merely to bring the defendants into Court, and the plaintiff not being bound to declare until after appearance by all.

1822.

CHRISTIE

t. WALKER.

both bailable, or both serviceable, and that the names of all the five defendants should have been inserted in each; or at all events, the declaration was irregular as against the defendant Walker, as the other four were not named either in the body or the ac etiam clause of the writ, under which he had been arrested.

Mr. Serjeant Vaughan now shewed cause, and insisted that there had been no irregularity on the part of the plaintiff. The facts were, that the five defendants were joint owners of a ship, and that Walker being about to leave this country, it was thought adviseable to issue bailable process as against him only, and serviceable as to the other four: that the affidavit of debt was sworn against all the five defendants, and that a déclaration had been delivered against all as of this Term, which was strictly regular, as the plaintiff, by the practice of this Court, could not deliver it until they were all in Court. The only question then is, whether they were properly brought there? The plaintiff having a joint cause of action against all the defendants, could only join four in one writ and in Turner v. Portall (a), which was an action against three defendants, bailable process was sued out against two, and serviceable against the other; and no objection was raised as to its being irregular. But there it was merely decided, that in a joint action against several defendants, after the appearance of one served with separate process, a declaration could not be delivered conditionally against all. Here, however, it was delivered in chief, as all the defendants were in Court.

Mr. Serjeant Hullock, in support of the rule. As the defendant Walker was arrested on a separate writ against him alone, in which the other four were not named, and

(a) 2 New Rep. 231.

IN THE THIRD YEAR OF GEO, IV.

as the declaration was delivered against all five, it must be deemed a declaration by the bye as against him, which could not be delivered till after the delivery of a declara tion in chief. But as the process was bailable against one, and serviceable against the others, there should have been two several declarations. The rule that only four defendants can be included in one writ, seems only to apply to separate causes of action (a), and bailable process; but in common process any number may be included. Another objection is, that both the writs were returnable in the last Easter Term, and the declaration was delivered as of the present. At all events, there was such a variance between the writ on which Walker was arrested, and the declaration delivered, as would entitle his bail to have an exoneretur entered on the bail-piece.

But, Per Curiam.-This is merely a motion to set aside the declaration for irregularity: whether the bail are entitled to relief or not, must be made the subject of a future application. The only object of the process was to bring the defendants into Court. It was not ne cessary that all should have been arrested. It appears that they were all named in the affidavit to hold to bail. They were all, therefore, liable to be arrested ;" and it seems that the plaintiff has adopted a very lenient course, by causing serviceable process only to be sued out against four of them. The distinction is, that the original capius may contain the names of several defendants; but that the process to be served, must be confined to four only. The declaration is not irregular, because bailable process has been sued out against one of the defendants, and serviceable against the others, as the plaintiff had a joint cause of action against all; and he was not bound to deliver till all the defendants were in Court. The de

(a) But see Impey's Practice C. P. 6th edit. 84.

1822.

CHRISTIE

v.

WALKER.