A RULE had been obtained calling upon Francis Hooper to shew cause why an annuity of 567. 19s. 7d., granted to him by Charles Lewis and Jane his wife, should not be set aside; and why an indenture and warrant of attorney, given and executed by them for securing the same, and the judgment entered up on the said warrant of attorney, should not be set aside and delivered up to be cancelled, on the grounds, that a part of the consideration money was retained; that the memorial was defective, in not stating truly how the consideration money was paid; and that the notes given to secure part of the consideration money were dishonoured when due. The annuity (determinable on the life of Jane Lewis) was granted June 21st, 1828. The statement in the memorial, as to the consideration money, was :-" 5007. paid in notes of the Govenor and Company of the Bank of England." It appeared, on affidavit, that this sum was not paid in Bank of England notes; but, principally, by a check and Worcester bank-notes. One half of the annuity was redeemed by the grantors in 1829; and the payments then continuing due were regularly made till June 1833. The affidavits set out other facts, as to the dishonour of the notes, and retaining of the consideration money, which are not material, and the argument on these parts of the case is omitted. R. V. Richards, now shewed cause. The application is chiefly grounded on *136] 53 G. 3, c. 141, s. 6., under which enactment this Court exercises a discretionary power; and, in a case like the present, will no doubt exercise it favourably to the grantee. As to the objection founded on an alleged defect in the memorial; it may be contended that sect. 2, of the act is imperative:(a) but in cases under the sixth section, it has been held that the lapse of six years operated as a quietus to grantees, by analogy to the Statute of Limitations: Mootham v. How, 7 Taunt. 596, [Humfrey, contrà, referred to Drake v. Rogers, 2 Brod. & B. 19, as shewing that this did not apply to cases under sect. 2.] That was the case of a memorial defective on the face of it: 80 was Darwin v. Lincoln, 5 B. & Ald. 444. Those authorities shew that the deed is held necessarily void where it varies in form from the precedent given by the statute. But where parties are obliged to make use of affidavits to shew that the memorial is irregular, the Court has an equitable jurisdiction, and may exercise a discretion, as in cases within sect. 6.

Humfrey, contrà. No available distinction can be drawn between this case and Drake v. Rogers, 2 Brod. & B. 19. In Faircloth v. Gurney, 9 Bing. 622, it was objected that the memorial stated the consideration to have been paid *137] in notes; the *annuity deed, in notes and sovereigns: and Tindal, C. J. said, "At this distance of time" (four years,)" that would be a subtle objection on which to vacate the grant of an annuity; but we must allow it, if it rests on sufficient ground." And he held that the parties were at liberty to shew how the money was actually paid, notwithstanding the words of the deed. There it appeared, on an affidavit filed by the grantee, that the statement in the memorial was true; here, the affidavits shew the contrary. The objects of the act, as to the memorial, would be frustrated if the statements there made could not be falsified by affidavit. The objection to the memorial in Mouys v. Leake, 8 T. R. 411, must have been raised by affidavit; but no advantage appears to have been taken of that circumstance in opposing the rule. Then, if the falsity of the memorial be shewn, the second section is imperative.

Lord DENMAN, C. J. The statute 53 G. 3, c. 141, s. 2, enacts,—[His

(a) 53 G. 3, c. 141, s. 2, enacts, that within thirty days after the execution of every annuity deed for life or lives, &c., a memorial, among other things, of "the pecuniary consideration or considerations for granting the same," shall be enrolled in chancery "in the form or to the effect following, with such alterations therein as the nature and circumstances of any particular case may reasonably require." "Consideration, and how paid.-1007. paid in money.-500l. paid in notes of the Governor and Company of the Bank of England, or other notes or bills of exchange, as the case may be." "Otherwise every such deed, &c., shall be null and void, to all intents and purposes."

lordship here read the section.] Now, it has been held in a variety of cases, that the consideration must be set out in the memorial according to the truth; otherwise the penal consequence attaches, that the deed is null and void to all intents and purposes. The Court has no discretion, but is obliged to give effect to the clause; and the cases shew that the statement must be precise; the memorial must give the fact. If it were otherwise, the act would be constantly eluded; and the same consequence would follow, if it were held sufficient that the memorial agreed with the annuity deed and if no question could *be raised by affidavit as to the truth of the matter stated. TAUNTON, PATTESON, and WILLIAMS, Js., concurred.

[*138 Rule absolute.

BROWN against SHEVILL. Thursday, Nov. 13.

A butcher sent a beast to the shop of W., another butcher, to be slaughtered: after it had been slaughtered, and the carcass had remained in the shop for some time (but how long did not appear), W.'s landlord distrained it for rent arrear: Held, that the carcass was privileged from distress.

TRESPASS. The first count of the declaration stated, that the defendant seized, took, and distrained certain bullocks' carcasses and meat, the property of the plaintiff, and sold them as a distress, whereby the plaintiff, being a butcher, and exercising that trade, was prevented from supplying his customers with the regular quantity of meat, and was obliged to purchase other carcasses, at a high rate, for his customers. The second and third counts were for seizing and converting the articles, without stating the plaintiff's trade. Plea, not guilty. On the trial before Denman, C. J., at the December sittings at Guildhall, 1833, the plaintiff's case was, that the plaintiff had sent a bullock to the premises of one Woodham, a butcher, to be slaughtered there by Woodham; and that, after it had been so slaughtered, it was seized by the defendant as a distress for rent owing for the premises by Woodham. The Lord Chief Justice told the jury that, if they believed these facts, and that the plaintiff was the real owner, and not merely substituted to evade the distress, they should give a verdict for the plaintiff. The jury found for the plaintiff. In Hilary term last, *Hutchinson obtained a rule to shew cause why the verdict should not be set aside, and a new trial had.

[*139 F. Pollock, now shewed cause. After verdict it cannot be said that the plaintiff was not the real owner: and this raises the question, whether goods under these circumstances be not protected from distress. The judgment in Simpson v. Harcourt, cited in Gorton v. Falkner, 4 T. R. 568, S. C. more fully, Willes, 512, though it confined the privilege of implements of trade from distress, to cases where there is no other sufficient distress to be found, and to such implements as are in actual use at the time of the distress, or cannot be restored in the same plight, yet admitted the absolute privilege of things delivered to persons exercising their trade, as cloth in a tailor's shop. [He was then stopped by the Court.]

Massy Dawson, contrà. In Grotton v. Falkner, 4 T. R. 568, S. C. more fully, Willes, 512, Ashhurst, J. lays it down as a general principle, that all chattels found in a person's house are liable to be distrained by the landlord, adding, that "the foundation of this principle is, that as the landlord is supposed to give credit to a visible stock on the premises, he ought to have recourse to every thing which he finds there." The exceptions to this rule are reducible to the principle cited by Dallas, C. J., in Gilman v. Elton, 3 Br. & B. 80, from Gisbourn v. Hurst, 1 Salk. 250, that "goods delivered to any person exercising a public trade or employment, to be carried, wrought, or managed in the way of his trade or employ, are, for that time, under a legal protection, and privileged

*140] from distress for rent." The same principle *has since been recognised in Wood v. Clarke, 1 Cr. & J. 484, S. C. 1 Tyrwh. 314, and Adams v. Grane, 1 Cr. & M. 380, S. C. 3 Tyrwh. 326. In order to bring the present case within the principle of the exceptions, three circumstances must therefore concur: the trade must be public; taking in the cattle of others to slaughter, must be essential to it; and it must appear that, in point of fact, Woodman here, did so take in the bullock. Now, first, the trade of a butcher is not public, in the sense of the words which the rule requires. The trade of an auctioneer, for instance (the trade held in Adams v. Grane, 1 Cr. & M. 380, S. C. 3 Tyrwh. 326, to be within the exception), is public upon grounds not applicable to the trade of a butcher; and the same may be said of all other trades which have been held to be public. Secondly, it is not essential to the trade, or to public convenience that a butcher should slaughter cattle which are the property of other butchers. The plaintiff appears, by the declaration, to be himself a butcher. The instances mentioned by Dallas, C. J. in Gilman v. Elton, 3 Br. & B. 80, from the judgment of Willes, C. J., in Simpson v. Hartopp, Willes, 515, are, materials sent to a weaver, or cloth to a tailor; and the reason there suggested for the protection of those articles is, that trade and commerce could not otherwise be carried on. So Blackstone, (3 Bla. Comm. book 3, ch. i., p. 8,) "Valuable things in the way of trade shall not be liable to distress. As a horse standing in a smith's shop to be shoed, or in a common inn; or cloth at a taylor's house; or corn sent to a mill, or a market. For all these are protected and privileged for the benefit of trade; and are supposed in com*141] mon presumption not *to belong to the owner of the house, but to his

customers. But, generally speaking, whatever goods and chattels the landlord finds upon the premises, whether they in fact belong to the tenant or a stranger, are distreinable by him for rent: for otherwise a door would be open to infinite frauds upon the landlord." This passage is cited, and the doctrine apparently adopted, in Lord Lyndhurst's judgment in Wood v. Clarke, 1 Cr. & J. 497, S. C. Í Tyrwh. 327, 328. In all these instances (to which might be added others, as that of an auctioneer), the general principle is, that the convenience of the trade, as it affects the public, is to be looked to. But it is not essential to the trade, as it affects the public, that one butcher should send cattle to be slaughtered by another; and, in fact, this is not the common way of conducting the trade; and the landlord could not presume that the carcass did not belong to the tenant. Thirdly, it did not appear in evidence that this carcass was actually in the shop in the ordinary course of trade. It was for the plaintiff to shew that the facts raised an exception to the general rule. In 1 Starkie on Evidence, p. 365, 2d edit. 1833, it is said, "In general, where it has been shewn that the case falls within the scope of any general principle or rule of law, or the provision of any statute, whether remedial or even penal, it then lies on the opposite party to shew by evidence that the case falls within an exception or proviso." To bring the present case within the exception, the plaintiff was at least bound to shew that the carcass had not remained at the shop an unreasonable time; otherwise it could not be said to be there in the ordinary course of trade. Thus in Adams v. Grane, 1 Cr. & M. *142] 381, S. C. 3 Tyrwh. 328, Bayley, J. makes the following *remark on

the case of Francis v. Wyatt, 3 Burr. 1498, S. C. 1 W. Bl. 483, (in which case it was held that a carriage standing at a livery was not protected);— "If I am not mistaken, one ground of that decision was, that the carriage was staying there for a permanency, and so occupying the premises for which the rent was payable." Francis v. Wyatt, 3 Burr. 1498, S. C. 1 W. Bl. 483, is therefore an authority in favour of the defendant. All that appeared in the present case was, that the carcass was at the shop, like other articles on sale.

Lord DENMAN, C. J. The first question is one of facts; that is, whether the plaintiff was owner, and whether he had sent the beast to Woodman that it might be slaughtered? and the jury have found both these facts in the affirma

[*143

tive. The second question is, whether, upon these facts, the carcass was pro tected from distress? I think it was. For the general protection of trade goods which are put into a person's hands, in order that he may exercise his trade upon them, are protected. Instances of this may be found in Comyns's Digest, (Distress, (C.)); and the rule is laid down in Gisbourn v. Hurst, 1 Salk. 250. The counsel for the defendant has made some observations upon the word "public," which occurs in the last mentioned case. But we must not insist upon this word so strictly as to hold that it comprehends only such trades as are commonly called public, like those of an innkeeper or a weaver. The last case mentioned by the Court in Gisbourn v. Hurst, 1 Salk. 250, is that of two tradesmen who brought their wool to a neighbour's beam, which he kept for his private use; and it was held, *that it could not be distrained. Read v. Burley, Cro. Eliz. 549, 596. S. C. Noy's Rep. 68. Then it is said that the Court of Exchequer has explained this privilege, and that it exists only where the common presumption is, that the goods belong, not to the owner of the house, but to his customers, (See judgment in Wood v. Clarke, 1 Cr. & J. 497. S. C. 1 Tyrwh. 327, 328.) There was, however, in the case alluded to, no more than a mere citation by Lord Lyndhurst of some authori ties, in which it was said that the goods sent in the course of trade would be supposed, in common presumption to belong, to the customer; and the decision of that case does not turn upon the doctrine in question. In Wood v. Clarke, 1 Cr. & J. 484, S. C. 1 Tyrwh. 314, the general privilege of materials delivered to a weaver by a manufacturer was admitted; which is a case much like the present; and that principle is in strict conformity with Simpson v. Harcourt, Willes, 512., (cited in Gorton v. Falkner, 4 T. R. 568,) and with the case in Common Pleas, Gilman v. Elton, 3 Br. & B. 75. If cloth sent to a tailor to be made into clothes, and materials sent to a weaver to be made into cloth, are protected, I think the carcass of a beast, which has been sent to the butcher's to be slaughtered is protected also: I cannot distinguish such a case from the others.

TAUNTON, J. I am entirely of the same opinion. The cases collected in Com. Dig. Distress, (C), are abundantly sufficient to illustrate the principle; and many instances there given seem, in my judgment, to carry the protection farther than is required for the present case. The case of Gisbourn v. Hurst, 1 Salk. 249, is *much stronger than the present. There a carrier brought [*144 his wagon with cheese, which had been delivered to him to carry, into a barn, where it remained two nights and a day; and the house to which the barn belonged was not an inn, but a private house; and it was held that the goods could not be distrained. The Court there agreed, "that goods belonging to any person exercising a public trade or employment, to be carried, wrought, or managed in the way of his trade or employ, are for that time under a legal protection, and privileged from distress for rent." And the carrier was held to to be, for the purpose of the privilege, a common carrier, though that was not his regular employment, on the ground that he took goods of all persons indifferently for hire. But then it is said that the trade of a butcher is not a public one. I know none more public, or the carrying on of which is more convenient or necessary it is as much so as a trade in corn. It is also said that the article in this case was not brought to be wrought or managed in the way of the trade. But the beast was taken to a butcher's to be slaughtered; and a butcher's business is to slaughter beasts, as well as to cut them up and sell them to the public. In Read v. Burley, Cro. Eliz. 549,596, the beam was kept for the tenant's private use. In Thompson v. Mashiter, 1 Bing. 283, goods deposited by a factor at a wharf were held to be protected. The law by which we decide this case is no new law; it is as old as the time of Queen Elizabeth, and has been acted upon in various instances, subject to no exception applicable here.

PATTESON, J. I am of opinion that the carcass was *protected from

*145] distress, on the general ground that it was in the hands of Woodham,

in the way of his trade. I cannot distinguish this case from that of a tailor; for though the trade of a tailor was originally confined to the cutting up of cloth for others, yet, as it is now carried on, it is not necessary that he should be trusted with cloth which is not his own. Yet cloth of a third person, in the hands of a tailor, for the purpose of being cut up, is not now distrainable. Reliance seems to be placed on the case of Francis v. Wyatt, 3 Br. 1498; S. C. 1 W. Bl. 483. There it was held that a carriage standing at livery was not protected. The judgment in that case is not formally reported: Lord Mansfield in the first instance, advised the avowant to consider whether it was for his advantage that judgment should be finally given in his favour; and afterwards it seems to have been given up by the plaintiff, the Court being clearly against him so that we are not aware of the reasons for the judgment. (a) There is, however, this distinction between that case and the present; that there the carriage was placed in the tenant's hands merely for custody, and nothing was to be done to it, whereas, here, the beast was sent to be slaughtered. Then a question is made, whether the trade of a butcher be a public one. What is meant by public I do not understand. A common carrier and an inn-keeper are bound to take in goods sent to them for the purpose of their trade. If that be the distinction *pointed at, I can understand it; and it was insisted *146] upon in the argument for the avowant in Francis v. Wyatt, 3 Burr. 1499, 1501; S. C. 1 W. Bl. 484. But a tailor is not obliged to take in cloth to be cut by him. I find, indeed, that an old authority was cited to shew that he is;(6) but that seems to have been afterwards repudiated: so that I do not see how we can make such a distinction available for the purpose of the present question. The jury have here found the fact that the beast belonged to the plaintiff, and was sent to Woodham to be slaughtered.

WILLIAMS, J. I am of the same opinion. The article in question was deposited in the course of trade. Many proprietors of cattle have no place upon the premises where cattle can be slaughtered. The protection of the carcass, therefore, in a case like this, is for the benefit of trade, just as much as that of any other article in the trades where the protection is admitted to exist. Allusion has been made to the necessity of the trade being public: by which is meant, I presume, that the nature of the case ought to be such that the landlord has not reason to suppose the goods to belong to his tenants more than to the tenants' customers. But in the case in the Exchequer (see judgment in Wood v. Clarke, 1 Cr. & J. 497, S. C. 1 Tyrwh. 327, 328), which has been relied upon for this distinction, the case of a beam kept for private use was cited, (Read v. Burley, Cro. Eliz, 549, 596; S. C. Noy's Rep. 68,) to which the distinction will not apply. Rule discharged.

*147] The KING against The Inhabitants of IKEN.

Saturday, Nov. 15.

Pauper went into the service of B., for whom he was to make and burn pots, and, to do so, he was to have the use of yards, and of a kiln and sheds, which belonged to, and were to be repaired by, B., who also was to find and cart the clay for the pots, and provide certain other necessary materials.

(a) In Sir W. Blackstone's Report (p. 485), it is said, that judgment was given "on the ground of its being part of the profits of the premises; which distinguishes it from the case of goods sent to be manufactured." See the ground assigned by Lord Kenyon in Gorton v. Falkner, 4 T. R. 567.

(b) In the argument for the avowant in Francis v. Wyatt (3 Burr. 1499), counsel cited the Year-Book of Hil. 22 Edw. 4, 49, pl. 15, to that effect (per Brian, C. J., of C. P. arg.). See the argument in Adams v. Grane, 1 Cr. & M. 384; S. C. 3 Tyrwh. 330; and judgment of Vaughan, B.