nuities were charged, and a considerable arrear of said two annuities accrued due; and petitioner accordingly, on the 2nd of January, 1849, exhibited her bill in the Court of Chancery against the said John Shortt and others, and thereby prayed that the said two annuities of £100 and £40 might be declared well charged on said one-seventh of said lands, and that an account of what was due to petitioner might be taken, and said defendants ordered to pay same, and that a receiver might be appointed; and said bill was duly taken as confessed against the said John Shortt. That by an order made in said cause, and bearing date the 20th day of July, 1849, the said John Shortt was ordered to make certain payments to petitioner on account of her said arrears, but which the said John Shortt did not pay. That said John Short applied to petitioner to come to some arrangement with him on account of said arrears; and thereupon petitioner agreed to accept the sum of £70 for said arrears. That accordingly by an indenture of the 7th of December, 1849, and made between the said John Shortt of the one part, and petitioner of the other part, it was witnessed, that in consideration of said agreement, and of the forbearance of petitioner, and also to secure to her the payment of the said sum of £147, thereby ascertained as due to her for her costs of said suit and for said arrears, with interest thereupon, and the future annuity of £25 a year to petitioner; the said John Shortt granted to petitioner an annuity of £40 a-year, to be yearly, issuing and payable out of all that and those said fivesevenths of said lands of Summerhill, containing 165 acres, situate in the barony of Ilkerrin, in the county of Tipperary, to hold to petitioner, his executors, administrators, and assigns, from the 1st of November, 1849, for the lives of the said John Shortt and of petitioner, parties to said indenture; and of Maria Shortt, daughter of said John Shortt, to be applied nevertheless by petitioner, first in discharging said sum of £147 so due for costs and arrears of said annuity, with the accruing interest thereupon, and after the payments thereof then in discharge of the arrears of the accruing annuity of £25 per annum, to be computed from the 1st day of November, 1849, and to be payable to petitioner during her life, and after paying said arrears then said annuity of £40 thereby granted to be reduced to £25 a-year. That by said lastmentioned indenture it was, however, also agreed that nothing therein contained shall be construed to abridge the rights of petitioner under the said marriage settlement and said deed of annuity as far as relates to said lands of Liskeen, or as to said lands of Summerhill, if the terms of said deeds were contravened; but that petitioner, at her election, might resort to all her remedies under said former indentures and the proceedings in said cause. That the terms of the said lastmentioned deed were contravened, and no payment whatever has been made to petitioner on account of said last-mentioned annuity of £40, but the said sum of £147, and all subsequent arrears of said annuity, are due and unpaid; and that all the arrears of said two original annuities of £100 and £40 a-year, so granted by petitioner's late husband to petitioner from the date of said last-mentioned deed to the preseut time, were now also due to petitioner. That on or about the 15th day of January, 1864, petitioner presented her petition to the Landed Estates Court, Ireland, entitled in this matter, and stating as therein, and praying that one-seventh part of the said lands of Summerhill, or a competent part thereof should be sold for the discharge of the incumbrances affecting the same; and on the 23rd of April, 1864, the usual conditional order for sale of said one-seventh part of said lands was made by said Court, and afterwards the usual absolute order for sale was made on the 15th June, 1864. That said conditional and absolute orders for sale were amended by several others, and finally by orders bearing date the 1st day of March, 1865, and 13th day of July, 1865, said orders for sale were amended by directing a sale of " one undivided moiety of one divided two-sevenths" of said lands. That in a certain other matter depending in the late Incumbered Estates Court, wherein one Hannah Shortt was petitioner, and William Thomas Shortt, owner, such proceedings were had that by an order therein, bearing date the 19th day of March, 1859, a partition of the said lands of Summerhill was ordered to be made, and such partition was made accordingly; and by an order of the 29th day of July, 1863, a certain part of said lands marked A. and B. upon the map to said last-mentioned order annexed, and containing 100 acres statute measure was set apart as representing the two-sevenths of said lands to which the said William Thomas Shortt was entitled, one of such sevenths being the seventh upon which said annuities were charged as aforesaid; and it was in consequence of such partition that Judge Dobbs so amended the said orders for sale, and in said lastmentioned matter three-sevenths marked C, D, E, F, G, H, I, and J on said map, were sold discharged of petitioner's said annuities. That neither petitioner nor the trustees of the said will of petitioner's said husband were parties to said last-mentioned matter or to said petition, or to any of the proceedings connected therewith, or had any notice thereof; and petitioner now submitted that she was not in any way bound thereby. The petition of appeal then stated that such proceedings were had in this matter; that the final notice to the tenants of the said lands, bearing date the 2nd August, 1865, was duly lodged, and therein Martin Murray, Matthew Treacy, and Daniel Treacy were stated to be tenants from year to year, at a rent of £9 2s., of 69 acres, of said lands, but that they claimed to hold under a lease from William Thomas Shortt, for three lives, with covenant for perpetual renewal, and was duly served according to the practice of the said Landed Estates Court upon (amongst others) the said Michael Treacy and Martin Murray, That on or about the 28th day of October, 1865, said Martin Murray and Michael Treacy, both of Summerhill, in the county of Tipperary, filed an objection to the said final notice in this matter, and therein claimed that by a certain indenture of lease, bearing date the 9th day of October, 1839, and made between the said William Thomas Shortt, of Summerhill, of the one part, and the said Michael Treacy, Martin Murray and Daniel Treacy, of the other part; the said William Thomas Shortt demised and granted unto the said Michael Treacy, Martin Murray, and Daniel Treacy, and the survivor of them, all That and Those that part of the of Summerhill, or of so much of said lands remaining unsold as will be equivalent to one undivided seventh of the whole of said lands, and that such one undivided seventh, or so much of the unsold lands as will be equivalent thereto, should be ordered to be sold accordingly, and that petitioner may have her costs of this appeal as part of her costs in this matter. To the above petition of appeal said Michael Treacy, and Martin Murray, who had purchased the interest of Daniel Treacy, under said lease, replied by way of answer; and they, while admitting the facts, submitted that the order of Judge Dobbs was correct, and that the right to dispute the said lease of 9th of October, 1839, was barred by the Statute of Limitations. Robert Griffin and George Foley appeared for the appellants.-The order of Judge Dobbs is erroneous and must be reversed; the effect of that order was to saddle the one-seventh of the said lands with a lease of the 9th of October, 1839, whereby no less an area than 42 acres were leased to the tenants, for lives rẻ lands of Summerhill aforesaid, then and formerly in their possession, containing about 42 acres, Irish plantation measure, situate as therein mentioned, to hold for the lives of three persons therein named, and for the lives of all such persons as should for ever thereafter be added, by virtue of the covenant for perpetual renewal therein contained, subject to the rent of £9 a-year, payable as therein, and in which lease is contained a provision that if any relative of the said William Thomas Shortt should have any claim upon the whole lands of Summerhill, for any quantity of land, and that same might or could be made on the premises thereby demised, in such case the said William Thomas Shortt, his heirs and assigns, were to give the said Michael Treacy, Martin Murray, and Daniel Treacy, their heirs and assigns, as much land out of that part then in their possession, and make such competent recompense as counsel might advise. That the said objection stated that the said Martin Murray had purchased said Daniel Treacy's interest in said lands, and submitted that if petitioner ever had a right to dispute said lease, such right was bar-newable for ever, at the paltry rent of £9 a-year; the red by lapse of time, possession having gone in accordance with said lease since the date thereof, and said objection relied on the Statute of Limitations, the said Martin Murray and Michael Treacy insisting that the said lease gave them a right to the specific lands so set apart for the two-sevenths of the said William Thomas Shortt, and that accordingly the sale in this matter should be made subject to said lease. That the said objection came on to be examined and disposed of on the 12th of January, and again on the 1st of February, 1866, before Judge Dobbs, and he was pleased to order that the claim of the said Martin Murray and Michael Treacy should be allowed, and that they should be allowed their costs out of the fund, in the same priority as the petitioner's costs, and also that they should be allowed the costs of counsel preparing said claim. That at the time of the making of said alleged lease the said William Thomas Shortt was seised only of an undivided share in said lands of Summerhill, and is the sole lessor in said alleged lease. Petitioner then submitted that the said order of the 1st day of February, 1866, was erroneous, so far as it ordered that the claim of the said Martin Murray and Michael Treacy should be allowed, and that they should be allowed their costs out of the fund, and also that they should be allowed the costs of counsel preparing said claim, and that said order ought to be reversed, or ought to be varied by declaring that if the sale in this matter is to be made subject to the said alleged lease of the 9th day of October, 1859, then that petitioner was entitled to a sale of one undivided seventh part of the said lands of Summerhill as prayed for in the original pétition in this matter, or of so much of the said lands remaining unsold as will be equivalent to one-seventh of the whole thereof instead of an undivided moiety of the said divided two-sevenths of said lands. The peti-rears were not limited to six years, even after subsetion then prayed that the said order of Judge Dobbs might be reversed or varied, and that it might be ordered that the said claim of the said Martin Murray and Michael Treacy be disallowed; or that it might be declared that petitioner was entitled to a sale in this matter, of one undivided seventh of the said lands whole of the lands being only 233 acres, and consequently the one-seventh being but 33 acres. We claim under the will of 1826, and by that will John Shortt, appellant's husband, devised to trustees to permit his nephew, William Thomas Shortt, to receive the rents thereof, but subject to the payment of the annuities to his widow, the appellant here, and in making this will the testator merely acted in pursuance of a covenant containing, in his marriage articles of 1805. If this lease is allowed to stand, our annuity falls to the ground, as the lands can not reach any thing at all like what will pay it. The Statute of Limitations, sec. 2, can not run against the appellant here; and on the other side it is pretended that if the petitioner even had the right to dispute the lease of the 9th of October, 1839, that right is now barred by the Statute of Limitations; we insist that we had the right to dispute a lease that would utterly annihilate our annuity, and further, that that right is not now gone, being barred by the Statute of Limitations; no lease whatever was made by the trustees of the will of 1826, in whom the legal estate was vested, and who alone had the right to make any lease; add also this other fact, that we filed our bill in 1849, for our arrears of annuity, and thus our right to the arrears of annuity is not gone. The legal estate being in the trustees prevents the bar of the Statute, and the cestui que trust had no title in him to give the lessees; the cestui que trust is in truth merely tenant at will to his trustees-Garrard v. Tuck (8 Č. B. 252, 253); when there is an outstanding trust the Statute of Limitations does not operate-Young v. Lord Waterpark (6 Jur. 656; s.c., 13 Sim. 204); Cox v. Dolman (2 De Gex. M'N. & G. 592) shows that full arrears may be recovered upon part of annuitant when terms is vested in trustees to secure it, and that the ar quent incumbrance by grantor-Lewis v. Dunscombe (29 Beav. 175); Snow v. North (2 Kay & Johnson, 478); Massy v. O'Dell (10 Ir. Chan. 22); Giles v. Giles (9 E. Rep. 135); Sugden, Vend. & Pur. 14th ed. 478-Hunt v. Bateman (10 I. E. R. 360); Blair v. Nugent (3 Jon. & Lat. 659); Scott v. Nixon (3 Dr. & War. 388); Kernan v. McNally (12 Ir. Ch. (duly appointed under the 12th and 13th Vict. c. 91, 89; Lewes v. Duncan (29 Beav. 175); Melling v. intituled, "An Act to provide for the collection of Leek (16 C. B., 652). rates in the city of Dublin," for the recovery of the Sherlock, Q.C. and John B. Murphy were heard rates and rents due from the defendant as the occupier in support of the decision of the Court below. It is of the house, offices, and small yard, No. 99 Stephen's now late to dispute this lease, the 2nd section of the Green, South, in the city of Dublin, which rates were Statute of Limitations bars any such attempt, and this duly made, assessed, and declared by the plaintiff as is not within the proviso of 25th sec. of the Statute of such Collector General under the 48th section of the Limitations. The Court will hold here that Shortt said 12th and 13th Victoria, c. 91; and notices thereof has acted as the agent of the trustees, and that there were duly inserted and published pursuant to the fore his acts were theirs, and the Statute then runs 52nd section of the said statute. Anne M'Donnell together as against the principal as well as the agent. was duly rated for said premises as occupier thereof, The decision in Young v. Lord Waterpark (6 Jur. and defendant having purchased the landlord's interest 656; s.c. 13 Sim. 204) relied upon on the other in said premises in the Bankrupt Court, and after said side, turned upon the fact that there was a subsisting Anne M'Donnell had left said premises, not being able term of years, and vested in the trustees, under which to let said house and premises, on the 1st June, 1864 they were entitled to go into possession, and such is the defendant caused the same to be furnished, and the way it is put by Lord St. Leonards in Cox v. Dol- advertised to be let as a furnished or unfurnished man (2 De Gex. & MN. 592); Melling v. Leek (16 | house, or the interest in the same to be sold. On the C. B. O.S., 652) we are in possession since 1839, 15th day of July, 1864, the defendant succeeded in and that too for valuable consideration, and this Court setting said house and premises as a furnished house is now called on to work an injustice in ousting us out to one Wilson Walsh as a weekly tenant, and said of our lease, of which we are in possession for six and Wilson Walsh continued to occupy said house and twenty years. It is admitted William Thomas Shortt premises till the 19th day of August, 1864, when he was in possession and receipt of the rents of the pre- left. The defendant then again advertised said house mises and possession has gone with the lease. Daniel and premises to be let as a furnished or unfurnished Treacy's interest under the lease has been purchased house, or the interest to be sold, and said house and for valuable consideration, by and belongs to Murray. premises were again let as a furnished house by the THE LORD CHANCELLOR.-The Lord Justice of Ap-defendant, on the 8th day of March, 1865, to one peal concurs with me that this order must be reversed, and the case sent back again to the Landed Estates Court. Order reversed. Solicitors for the appellant-William Neilson and Son, 104 Court of Queen's Bench. Reported by William Woodlock, Esq. Barrister-at-Law. STAUNTON V. POWELL.-June 12, 22. nished it and advertised it to be let or sold. He succeeded in letting it to tenants for portions of the year, but during the other portions the premises were not otherwise occupied than by his furniture. Held -(dissentiente Fitzgerald, J.) that he was only liable to rates on said house and premises for the periods during which same was actually set to and occupied by his under-tenants. THIS was an action brought by the plaintiff as CollectorGeneral of Rates in the city of Dublin, to recover the sum of £58 10s. 10d., alleged to be due by de fendant for rates and rents of premises No. 99 Stephen's, Green, South. After the issuing of the summons and plaint the parties agreed to state a case for the opinion of the Court. The case stated was as follows: The action in this case was brought by the plaintiff as Collector General of Rates in the city of Dublin, Maurice Maude as a monthly tenant, and the said Molloy and Palles, Q.C., appeared for the plaintiff. The following authorities were referred to-St. 12 & 13 Vict. c. 91, s. 62; Jones v. The Mersey Docks and Harbour Board (35 L. J., N.S., Mag. Cas. 1; S, C., 11 Jur. N.S., 746; 12 L. T., N.S., 643); The Guardians of the North Dublin Union v. Scott (1 Ir. C. L. R., 76;) The Guardians of the Limerick Union v. White (2 Ir. C. L. R., 630); Staley v. Overseers of Castleton (5 B & Sm. 505); Harter v. Overseers of Salford (34 L. J., N.S., Mag. Cas. 206). Cur, adv. vult. not so. June 22,-FITZGERALD, J.-In this case the judgment of the Court will be delivered by my Lord Chief Justice, but as I dissent from that judgment, I will state the grounds of my opinion. This is a case stated by the plaintiff as collector of rates, and the defendant is the occupier of property in this city. The question is as to the liability of the defendant to certain rates. It appears from the statement in the case that the defendant became the owner as well as the occupier in fact of certain premises in Stephen's-green, and it appears that on the 1st June, 1864, prior to the imposing of the rates, he caused the house to be furnished and advertised to be let or sold. It appears that he succeeded in getting it let. He does not contest the rates during the time the house was in the hands of the tenant, but he does during the time while it was The question arises on the meaning of the word "occupier." Some doubt might have been thrown by the decisions on the liability to poor rate, and this Court determined that the owner of a house in Dublin-the house being wholly untenanted and in the hands of a care-taker-was not liable to poor rate. Possibly some doubt might have been thrown on the soundness of those decisions, but those cases have received a legislative sanction by section 62 of the Act for the Collection of Rates in the City of Dublin, It provides that when any property is unoccupied at the time of making the rate the collector-general shall in every case include the property in the rate describing it in the column appropriated to the name of the occupier as being "empty," and if any person afterwards occupy such property, during any part of the period for which such rate was made, the collectorgeneral shall insert in such rate the name of such occupier, and collect from such occupier or from the owner, if he be liable to pay the same, a portion of the said rate proportioned to the time during which such person occupies such property. Well, no doubt that is applying to all the subjects of taxes within the scope of Dublin taxation the principles of other taxes. We were not referred to the Dublin Improvement Act, st. 12 & 13 Vict. c. 97, sec. 118, which exempts from taxation any sufficiently fenced or enclosed lot or lots of ground, being laid out for the purpose of building houses thereon, in front to any street or public passage, and which lot or plot has not any building erected thereon, but is actually waste, and out of use or profit. The short question for us is, whether a house which is subject to be rated, and which would be exempt from the rates for the time being, if actually rated-whether it is equally exempt, when the owner on whom the law throws the occupation has furnished it and advertised it to be let, and has actually during the year, derived profit from it as a furnished house. It appears to me that it is not to be treated as an empty house-that it cannot be said that a house which is furnished and let during parts of the year as a furnished house can be said to be empty and unoccupied. The true meaning of the word "unoccupied " is, where it is so situated that not only no profit, but no use, is derived from it. On that ground I take it that these premises were subject to the rate for the whole year as being in use, though not having an occupying tenant. I am happy that the case is in that shape that the party may go to the last tribunal. O'BRIEN, J.—I concur in the last observation made by my brother Fitzgerald, but I abide by the opinion which I formed during the argument, and I think these premise are not liable to be rated. The question turns, in the first instance, on the words of the 62nd section of the Collection of Rates (Dublin) Act, 12 & 13 Vict. c. 91, which enacts" that when any property in respect of which any person is liable to be assessed as occupier to any rate under the provisions of this Act is unoccupied at the time of making any such rate, the collector general shall in every such case include such property in the said rate, describing it in the column appropriated to the name of the occupier as being "empty;" and if any person afterwards occupy such property during any part of the period for which such rate was made, the collector general shall insert in such rate the name of such occupier, and collect from such occupier, or from the owner, if he be liable to pay the same, a portion of the rate proportioned to the time during which such person occupies such property, and every such person shall thereupon be deemed to all intents and purposes to be properly rated; and all such rates may be collected and recovered from the person liable to pay the same under the provisions of this Act in the same manner as other rates payable thereunder." Well, now, that manifestly provides for a state of things that does take place as to furnished houses, that they are for a portion of the year occupied, and for a portion unccupied, and we are to consider whether the words "occupied " and "unoccupied " are to be construed in the way that the defendant contends for, or according to the strict legal meaning of the words. Now, with regard to the case that we were referred to of Jones v. The Mersey Docks and Harbour Board, it contains this passage in respect to the word "occupation." Byles, J. says there" I am of opinion that the Mersey Docks and Harbour Board are not occupiers within the true meaning of the statute 43 Eliz. No doubt they are occupiers in the strict legal sense of the word, that is to say, they are in possession of the land, and are the proper parties to bring an action of trespass. But the sense in which your Lordships use the word ⚫occupiers is the sense in which it is used in the earlier leading cases on the subject, and that sense must be borne in mind in order to understand those cases. I conceive that the occupation to be an occupation within the statute must be a beneficial one." Then there are the two cases, that of The Guardians of the North Dublin Union v. Scott (1 Ir. C. L. R. 76); and The Guardians of the Limerick Union v. White (2 Ir. C. L. R. 630). The latter case was that of a store used for oats. Though the premises were, in the legal sense of the word, in the occupation of the parties rated, still it was held that these parties were not occupiers within the sense of the Poor Law Act, because the occupation contemplated by the Act is an occupation to be attended with some generally sold by sample, the parties may introduce into the contract a condition to that effect. Syers v. Jonas (2 Ex. 111) followed. THE first count of the summons and plaint complained that it was agreed by and between the plaintiffs and the defendants that the defendants should sell and deliver to the plaintiffs, and that the plaintiffs should buy and accept from the defendants a lot, to wit, 1,170 barrels of prime Riga flax seed at 46s. per barrel less two months' interest for prompt cash for same, free at railway or steamer, and all conditions were fulfilled, and all things happened, and all times elapsed necessary to entitle the plaintiffs to have such " 'prime Riga" flax seed delivered as aforesaid, yet the defendants delivered to the plaintiffs as and for the flax seed so agreed to be sold and delivered as aforesaid certain flax seed which was not prime Riga flax seed, but of an inferior quality, whereby the plaintiffs lost the price paid by them to the defendants for the said flax seed, and the profits which they would have derived from the performance of the said agreement by the defendants, and incurred other ex use and benefit. Now, what is the case before us? We were pressed with the authority of Staley v. Overseers of Castleton (5 B. & Sm. 505), and Harter v. Overseers of Salford (34 L. J., N. S., Mag. Cas. 206). These were both cases of mills not worked. In the latter case the mill was rated at what it would be supposed to bring, if set to a yearly tenant. It was contended that it was not to be rated at all; but the Court held though it was not rateable at the time at which it had been rated, that it was liable to be rated according to its value as a warehouse for the owner's machinery. In Staley v. The Overseers of Castleton the parties agreed that a certain sum should be fixed as the value of the premises considering them merely as a warehouse for storing machinery. That was adopted by the Court; they refused to accede to the argument of the overseers that the rating should be according to the value at which the premises would be let, and adopted the other value. These authorities are of value in this case, as by the Dublin Improvement Act premises are to be rated according to their value as houses, and here these are houses, and it is as houses they are to be rated; so that the decisions in these two cases are applicable to the pre-penses in and about the same. The second count comsent, and furnish an argument for holding that as the Court refused to deal with the premises there as if actually used for the purpose for which they were built, so the Court ought also to act here; but it seems to me really that the word "occupation" does not mean actual occupation. A caretaker is the person in occupation in one sense of the word. It ap-" prime Riga flax seed," and all conditions were fulpears that these premises were perfectly valueless when bought. The man put furniture into them: the special case finds that the amount was paid for the time during which they were let, and the question is, was he liable for the whole. I think he is not, and that there should be judgment for the defendant. LEFROY, C. J.-I am of opinion with my brother O'Brien, though I confess that the first impression which I received and retain was suggested to me by the observation of my brother Fitzgerald, namely, that this cannot be considered as an actual profitable enjoyment. The defendant put in the furniture with a view to let the house, and make it a profitable enjoyment; he put it in as a speculation, and from the moment it becomes an actual profitable enjoyment he is taxable, but in the meantime it was a pure speculation, and a man is not taxed for a speculation. On this short ground I concur with my brother O'Brien. Judgment for the defendant. Court of Common Pleas. Reported by J. Field Johnston, Esq., Barrster-at-Law.] Sale by sample-Evidence of custom. plained that by an agreement made by and between the plaintiffs and the defendants, the defendants bargained and sold to the plaintiffs, and the plaintiffs bought from the defendants certain flax seed at the price of 46s. per barrel, and by the said agreement the defendants warranted the said flax seed to be filled, and all things happened, and all times elapsed necessary to entitle the plaintiffs to maintain this action for the breach herein-after mentioned of the said warranty, yet the said flax seed was not prime Riga flax seed, but of inferior quality, whereby the plaintiffs were unable to sell part of the same, and were obliged to sell the residue thereof for less prices than they otherwise would have done, and incurred expenses in and about the same by reason of its inferior quality. The third count complained that the defendants, by warranting that certain, to wit, 1,170 barrels of flax seed were then equal in quality and description to a sample thereof then shewn by the defendants to the plaintiffs, sold the said 1,170 barrels to the plaintiffs, yet the said 1,170 barrels of flax seed were not then equal in quality and description to the said sample thereof, whereby the plaintiffs lost the price paid by them to the defendants for the same, and the profits which would have otherwise accrued to them, and incurred expense in and about the same; and the plaintiffs averred that they had sustained damages by reason of the premises to the amount of £1,075. The defences pleaded were, to the first count, that it was not agreed between the plaintiffs and the defendants in manner and form as in the said count alleged. To the second count, that the defendants did not make the agreement in the second count mentioned as alleged. To the third count, that the defendants did not make the warranty in the said count mentioned as alleged. The issues were in the terms of the defences. At the trial before Keogh, J., it was proved for the plaintiffs that a commission agent, Beattie, who resided in Belfast, and who acted for one of the plaintiffs as his agent, had in the latter end of February |