KEEFFE v.

KIRBY.

this particular devise to John that the question before us is raised, H. T. 1857. Common Pleas. but upon a devise to another son, named Cornelius. However that devise is similar to the devise to John. Therefore it appears to us that, upon the whole will, it is plain that the testator did not contemplate that the executors were to sell in the interval between his death and the time when these sons should enter into possession, and that interval was the only period of time during which the executors could have an estate in the lands; for it is plain that the interest and possession was to vest in each son on the happening of the event mentioned in the will. We think, therefore, that whatever estate vested in the trustees, such estate was only to remain in them until the time when the testator's son should become entitled to enter into possession. Accordingly, we are of opinion that the ruling of the Judge at the trial was right, and the cause shown must be allowed.

BALL, J., JACKSON, J., and KEOGH, J., concurred.

H. T. 1857.

Crim. Appeal.

Jan. 24.

Court of Criminal Appeal.*

THE QUEEN v. BOYLE and others.

In a warrant THIS was an indictment for a rescue, tried before the Assistant authorising a

poor-rate col- Barrister for the county of Louth, at the October Quarter Sessions; Îector to levy rates, the occu- who reserved the following case for the opinion of the Court.

piers were described as

commons.

The traversers were indicted for rescuing forcibly from the

"tenants of custody of John Farley, a poor-rate collector, six cows which he Held, that this had distrained on the commons of Carlingford, on the 24th of May

was an insuf

ficient descrip- 1856, for the sum of 17s. poor-rate, and 21s. arrear of poor-rate.

tion of the

occupiers, and At the trial, James Murphy, clerk of the union, proved that, on

did not author

ise a distress of the 14th of February 1856, a rate was made by the guardians of cattle grazing

on the com- the union, and produced the rate-book and proved the signature

mon.

of the chairman, and two of the guardians of the union, and his own signature, as clerk of the union, to the rate so made. He also proved a warrant of same date, signed by the same parties, directed to John Farley, collector of the poor-rates for Carlingford division of said union. The warrant was in these words:- "You are hereby "authorised and directed to levy the several poor-rates in the "annexed book set forth, from the several persons therein rated, or "other persons liable to pay the said rates or arrears of rates.” An entry in the rate-book was then read, in which the occupiers were described merely as tenants "of commons." John Farley, the poor-rate collector, proved that he received the warrant, and that on the 24th of May 1856 he proceeded, with two assistants, to the commons of Carlingford to levy the rates; that he seized the cows, which were forcibly taken from him by the traversers, Boyle claiming the cattle as his property. The place on which the distress was made was the open ground or commons of Carlingford, mentioned in

* Coram MONAHAN, C. J., PERRIN and JACKSON, JJ., RICHARDS and GREENE, BB.

the warrant.

Witness further stated, that there were 270 housekeepers mentioned in the warrant, who claimed a right of commonage on the land; and that there were 218 persons living on the commons, who had cottages or gardens on the commons, fenced and inclosed from the remainder of the common, for which holdings they were separately rated; that the traverser Boyle was one of those 218 persons, and lived on the commons in a separate holding, for which he was rated separately; and he also claimed a right of commonage in the land or open ground on which the distress was made.

On the close of the case, on the part of the traversers, the Court were called on to direct an acquittal, on the ground that there was no valid rate struck, inasmuch as there was no person named therein as immediate lessor, nor as occupier, and inasmuch as under the column "occupier," the entry in the rate-book was an insufficient description. The Court refused to direct an acquittal, and directed the jury to assume that the warrant was sufficient, that the rate was legal, and that therefore the cattle were in legal cnstody. The jury found the traversers guilty, and sentence was deferred until the decision of this Court should be ascertained, as to the validity of the rating.

Hamill, for the prisoner, relied on the insufficiency of the warrant, in not specifying the party liable to the rate.

Corballis, contra, relied on Regina v. Westropp (a). In that case the occupier was described by the initial letter of his Christianname, and that was held a sufficient description; and in Regina v. Higgins (b), the occupiers were described as the representatives of T. K., and that was held sufficient: The Queen v. The Inhabitants of Fordham (c).

GREENE, B.

If no person be assessed, then there is no rate.

H. T. 1857.
Crim. Appeal.

THE QUEEN

บ.

BOYLE.

(a) 2 Ir. Com. Law Rep. 219.

(b) 2 Ir. Com. Law Rep. 213.

(c) 11 A. & E. 73.

H. T. 1857.

Crim. Appeal.

THE QUEEN

V.

BOYLE.

PERRIN, J.

The rate is imposed on the person in respect of the property rated. In the cases of The Queen v. Westropp and The Queen v. Higgins-in one case the representatives of the party were rated, and in the other case the Court held that, if there was error in the rate, it was the subject-matter of an appeal, and not a question for this Court.

MONAHAN, C. J.

We are all of opinion that the collector had no right to make the seizure. In order to make the rate valid, the rate-book must in some way describe the occupier. "Tenants of the common" is

an insufficient description.

PERRIN, J.

It would be much more convenient if a small sum was charged

against each occupier.

Conviction quashed.