nation or admission into the said hospital, should any ways abuse the said charity by their immoral-like profaneness or lewdness, or other misbehaviour, then it should and might be lawful for and be in the power of the said then present Duke (party thereto) or his heirs, or, for failure of such, for the lords of Bottesford and their successors or lords of Bottesford for the time being, to remove and displace such person or persons, so as he or they should have no benefit or advantage of the said charity, and to nominate and appoint any other person or persons in the place and stead of such person or persons so to be removed."

3. In the said conveyance is also contained a declaration that the said trustees should demise or lease all or any part of the said premises for a term not exceeding twenty-one years, so as upon every such lease there be reserved the full and improved rent, without any fine to be paid.

4. It was further proved that the said George Steele was paid by the trustees of the hospital the sum of 9s. 2d. per week; that the appointment of the hospital men by the Duke of Rutland for the time. being was *by word of mouth or by letter to his agent who re[*26 duced such appointment in writing, and forwarded it to the parties so appointed; that there was in the said hospital a common hall where the hospital men had their meals; that each man occupied a separate room with a pantry, and that all the apartments were num bered; that the entrance to the said hospital is by one outer door into a passage at the end of which is a second door, and all the inner doors of the said apartments open into the said passage; that a matron is appointed by the said trustees, who has apartments allotted to her, and who receives a salary of 201. per annum, and whose duties consist in the general superintendence of the hospital, in cleaning the apartments, and in cooking and washing for the said hospital men; that the said hospital men pay no rates or taxes, and never repair the apartments; that they enjoy the use of an orchard and garden adjoining the hospital, and are supplied from the funds of the trust with coal, medicine, medical attendance, and all necessaries (except meat and provisions); that they also receive a cloak apiece once in two years; that they have uninterrupted enjoyment of their apartments, together with a key, and with a power of ingress and egress at any time, but that, after 9 o'clock at night, the matron by arrangement among the hospital men locks the outer door, and hangs up the key in the passage; that no instance has been known of any one of the hospital men being removed, although a power of amotion is contained in the deed, for immorality, profaneness, lewdness, or other misbehaviour; nor has any instance been known of any of the poor men having ever sublet their apartments; that, as the rents of the said lands and tenements mentioned in the said deed of reconveyance increased, such increased rents were distributed amongst the hospital men from time to time; *and that, so far back as the [*27 year 1778, each man has been in receipt of upwards of 107. per annum, and each man is now in actual receipt of 9s. 2d. per week, exclusive of the coals and gown.

5. Upon proof of the above facts, the revising barrister held,— First, that, although the weekly payments to each of the hospital men

amounted to more than 107. per year, as the power of appointment and amotion expressed in the deed appeared to him to be discretionary with the Duke of Rutland for the time being, the said George Steele had not such on equitable freehold interest in land as to entitle him (under the provisions of the 2 W. 4, c. 45, s. 18) to have his name retained upon the register of voters for the said parish of Bottesford, in the said division of the said county,-Secondly, that, even if that were not so, the said George Steele was simply a member of an eleemosynary institution, and as such was not entitled to have his name retained upon the said register.

6. There were thirteen other names upon the existing register for the said parish, and two on the list of new claimants, whose right to be retained or otherwise depended upon the decision of the Court in the case of George Steele.

7. The revising barrister expunged the names of the said thirteen persons on the old register, and disallowed the said two new claims.

8. If the Court should be of opinion that the revising barrister was wrong, then the name of the said George Steele, together with the names of the thirteen other persons, were to be restored to the register, and the two new claims were to be allowed.

Mellish (Q. C.), for the appellant. It will not be disputed, that, if these persons have any estate at all, it is an equitable freehold for life. The case finds that the inmates of this hospital are remo*28] vable only for misbehaviour. Then does the mere circumstance of this being a charitable foundation prevent the parties from acquir. ing the franchise? If an estate be given to a man from motives of charity, that clearly will not prevent the donee from acquiring the right to vote. According to the deed set out in the case, certain sums are to be paid to each of the fourteen inmates of Bottesford Hospital, which in the aggregate exceed 107. per annum. No mode of disposing of the surplus arising from the increase in the value of land is pointed out: but it is found as a fact that the trustees do divide the whole surplus ainong the inmates; and it must be assumed that that is in accordance with the true construction of the deed. If the trustees were, without just cause, to remove one of these persons, would he not have a remedy by bill in equity to recover his aliquot share of the rents? If so, he clearly has an equitable freehold within the 18th section of the Reform Act. In Davis, app., Waddington, resp., 7 M. & G. 37 (E. C. L. R. vol. 49), 8 Scott N. R. 807, 1 Lutw. Reg. Cas. 159, the inmates of Jesus Hospital, Rothwell, were held not to have such an estate as entitled them to be registered as freeholders, because the trustees had power to remove them "toties quoties sibi conveniens fore videbitur."(a)-In Simpson, app., Wilkinson, resp., 7 M. & G. 50, 8 Scott N. R. 814, 1 Lutw. Reg. Cas. 168, the qualification in respect of which the right to vote was claimed, was, the room in which the party lived, and not the share in the profits of the land. That case has been observed upon and somewhat shaken since. The cases, however, which will be mainly relied upon on the other side,

are Heartley, app., Banks, resp., 5 *N. C. 40, K. & G. 219, and *29] Freeman, app., Gainsford, resp., 11 C. B. N. S. 68 (E. C. L. R. vol. 103), K & G. 448. In the former of these cases, the claim was (a) He referred to a learned note by Serjeant Manning, 7 M. & G. 45 et seq.

of a borough vote by the military knights of Windsor, in respect of a supposed interest in the houses occupied by them: and Cockburn, C. J., in delivering the judgment of the Court says: "Whether the interest of these parties in the benefits of the charity be a freehold interest or not, we are of opinion that there is no such estate or interest in these houses as can properly be deemed an ownership. The legal estate is in the dean and canons of Windsor; and, though they may be bound to allow the knights to occupy these houses, yet it appears that the dean and canons have power and authority to impose such restrictions on the enjoyment as to divest the occupation of the character of ownership. The knights cannot let their houses in the whole or in part, except with the assent and sanction of the dean and canons. The language, too, of the grant, and of the statutes of the institution, speaks of the houses or rooms of the knights (for, both terms are used,) in language inconsistent with the idea of ownership." The decision in Freeman, app., Gainsford, resp., proceeded entirely upon the authority of Heartley, app.; Banks, resp. The claim there was in respect of the house in which the party lived: and the Court held that he did not take "an equitable freehold in the chambers in the hospital wherein he resided, so as to entitle him to vote under the 8 H. 6, c. 7." "When," says Erle, C. J., “the governor finds him rooms for his residence, he does not confer upon him any estate which he could enforce by bill in equity." That, it is submitted, is the true test. Here, the claim is in respect of an interest in the lands themselves. If the surplus profits are to go to the inmates, they clearly have an equitable interest in the lands.

*Hayes, Serjt., for the respondent.-The terms of the deed negative there being any freehold interest whatever in the reci. [*30 pients of this charity. The lands, and even the household goods, are all vested in the trustees: all that the inmates are entitled to under the deed, is, 10s. 8d. per month, and certain other trifling money payments, amounting altogether to considerably less than 107. a year. And the trustees are to do all the repairs. The same point that is raised here was raised in Ashmore, app., Lees, resp., 2 C. B. 31 (E. C. L. R. vol. 52), 1 Lutw. Reg. Cas. 337. The inmates of an hospital in the county of York, founded and endowed by the Duke of N. in 1673, claimed to be registered for the county of Nottingham. It appeared that the revenues of the hospital were derived from lands, and corn-rents in lieu of tithes of lands, in Yorkshire and Nottinghamshire, which were vested in trustees; that the whole formed one fund, out of which the trustees paid a weekly stipend to each inmate; that, originally, each inmate received 2s. 6d. per week, and a certain weekly allowance of coals and clothing; but that the weekly payment had subsequently been increased to 10s.; that, by one of the constitutions of the charity, it was provided, that, if at the end of any year there should be found in the treasury of the hospital above 1007., the surplus should be divided amongst the pensioners; and that the appointment was for life, no instance of dismissal being known. By an Act of Parliament modifying the constitutions of the charity, it was provided, that, instead of having the surplus revenues distributable amongst the original number of pensioners, additional pensioners should be chosen; and the trustees, under the direction of the Duke,

were empowered and directed from time to time to add as many more pensioners as the revenues of the hospital would allow (leaving a sufficient surplus for repairs and incidental expenses); and the trustees *were, under the directions of the Duke, to pay the pensioners *31] such fixed stipends as they should think fit (having regard to the revenues of the hospital), and to lessen or increase, vary, change, and alter such weekly stipends, as they should find requisite, so that the stipends should at no time be reduced below 3s. 6d. a week. The revising barrister having held that the inmates had no legal or equitable interest in the funds (a) of the hospital to a sufficient amount to entitle them to be registered, assuming that they had no absolute right to more than 3s. 6d. per week,-the court affirmed his decision. In Simpson, app., Wilkinson, resp., there were no trustees: the recipients of the charity were letting part of the premises, and receiving and dividing the proceeds among themselves. [BYLES, J.-The ground stated for that decision in the judgment in Heartley, app., Banks, resp., was not the real ground on which it proceeded.] It was not. In Freeman, app., Gainsford, resp., Erle, C. J., says: "I do not accede to the sug gestion that the Court is put to its election between the case of Simpson, app., Wilkinson, resp., and that of Heartley, app., Banks, resp. The question submitted for the opinion of the court in the former case was, not whether the claimants had an equitable freehold in the rooms allotted to them, but whether the revising barrister was right in holding that a legal foundation might be presumed, not necessarily investing the claimants with a corporate character. And the judg ment of the Court was confined to that." Simpson, app., Wilkinson, resp., therefore, can have no application here. In Heath, app., Haynes, resp., 3 C. B. N. S. 389 (E. C. L. R. vol. 91), K. & G. 99, the inmates of the Earl of Leicester's Hospital,-a charity regulated by a private Act of Parliament,-each had allotted to him by the master rooms therein of more than the yearly value of 107., of which he had the exclusive use. *32] The appointment *was for life, subject to removal for breach of any of the rules. The Court held that they did not occupy "as owners or tenants" within the 27th section of the Reform Act, and therefore were not entitled to be registered. There, as here, the legal and equitable interest was in the trustees.

Mellish, in reply. This charity appears to have been founded in or about the year 1692, under what circumstances is not row known. In 1762, when the deed referred to in the case was made, some additional lands were probably given to the hospital: but there is no resulting trust in the Duke, nor any reservation enabling him to deal with the funds at all. The whole profits of the land are to be devoted to the objects of the Duke's bounty: and the case finds that since the year 1778 the entire rents have been so distributed and the presumption is that that was done in conformity with the deed. The general nature of deeds of this kind was considered in The Attorney-General v. The Drapers' Company, 2 Beavan 508. Lord Langdale, M. R., there says, that, "in every case where the general purpose of a gift or conveyance is declared to be a charity, and the particular payments do not exhaust the whole fund, any surplus will belong to the charity, unless there are other circumstances from which a contrary intention (a) Lands?

of the testator can be collected." In Ashmore, app., Lees, resp., there was an express provision that the trustees were to apply the surplus revenues in a particular way, viz., by increasing the number of pensioners. The decision in that case, therefore, is strictly in accordance with that of Davis, app., Waddington, resp. [KEATING, J.-Do you find any case where a gift of land to trustees upon trust to receive the rents and profits and pay 107. a year to A. B., has been held to give an equitable estate in fee to A. B. ?] No.

*ERLE, C. J.—I am of opinion that the decision of the [*33 revising barrister in this case was right. The qualification of the parties objected to was in respect of a freehold interest in land in the parish of Bottesford. It appears that a charity called Bottesford Hospital was founded by the Earl of Rutland in or about the year 1692; and that, in 1762, there was a reconveyance of certain lands by the then Duke of Rutland to trustees therein named, who were to hold them in trust to permit and suffer the rectors for the time being in Bottesford and Harly to receive the rents and profits, and to appropriate the same in making certain payments to each of fourteen poor men who then were or thereafter should be admitted into and placed in the hospital,-10s. 8d. per month, 2s. a year for pye-money, 10d. a year in lieu of capon-money, 1s. a year for salt, and 10d. a year for candles, besides certain allowances for clothing, fuel, and attendance, and so on. The legal estate is in the trustees, upon trust to allow the rectors of the two parishes named to receive the rents and to appropriate them to the extent described and in the manner mentioned. The deed is silent as to the disposal of the surplus rents after satisfying those claims; and there is nothing to warrant the inference that they are to be appropriated to the inmates of the hospital. These fourteen persons insist that they have a freehold interest in the lands. Legal interest they clearly have not. Nor have they any equitable estate in the land. All they are entitled to, is, to receive certain payments out of the profits of the land by the hands of the trustees. Looking to the deed as set out in the case, I see no sign of an equitable interest in the land in these persons: and to qualify them to vote they must at least have that. In Freeman, app., Gainsford, resp., 11 C. B. N. S. 68 (E. C. L. R. vol. 103), K. & G. 448, the parties also claimed to have equitable *freeholds in the chambers which [*34 they occupied but the Court held otherwise. I am reported to have said on that occasion,-" It seems to me that the inmate is elected as a mere object of charity; and that, when the governor assigns him. rooms for his residence, he does not confer upon him any estate which he could enforce by bill in equity." And my Brother Williams said: "The language of the constitutions simply is, that the accommoda-. tion for the recipients of the charity shall be regulated in a certain way. They are to take for their lives, subject to removal for any of the offences specified. But it does not therefore follow that the particular rooms are to be assigned to each of them as owner for his life. It seems to me to be clear that he has not the right of an equitable owner at all. If he had, although the purposes of the charity might require him to be removed to another set of rooms, he might set the governor at defiance. It is quite manifest that no such state of things. as that could have been intended." So here, I take it to be clear that