registered, but that their occupation is only subservient to the charity. The right of freeholders to vote for a county is based upon the statute 8 H. 6, c. 7, which, reciting that "the election of knights of shires to come to the parliaments of our lord the King in many counties of the realm of England have now of late been made by very great, outrageous, and excessive number of people dwelling within the same counties of the realm of England, of the which most part was of people of small, substance and of no value. whereof every of them pretended a voice equivalent as to such elections to be made with the most worthy knights and esquires dwelling within the same counties," &c., provides, ordains, and establishes "that the knights of the shires to be chosen within the same realm of England to come to the parliaments of our lord the king hereafter to be holden, shall be chosen in every county of the realm of England by people dwelling and resident in the same counties, whereof every one of them shall have free land or tenement to the value of 40s. by the year at the least above all charges." There is no case precisely in point: but all the observations in the judgment of the Court in Heartley, app., Banks, resp., apply with equal force here. The whole foundation of the party's claim to vote arises out of the eleemosynary character of the institution. His occupation is not that of owner. He cannot let or assign his *86] rooms, nor could he mortgage his interest in them: he cannot *even go out of them without forfeiting his claim to participate in the funds of the foundation. In Simpson, app., Wilkinson, resp., there were no intervening trustees: the bedesmen were in the actual legal possession of the property. The ordinances here are altogether incompatible with the freehold being in these poor people. They are subject to arbitrary amotion for certain offences. The allotment of chambers and the general government of the inmates are very analo gous to the statutes for the government of the military knights of Windsor, which are set out in Heartley, app., Banks, resp. In giving judgment in that case, Cockburn, C. J., 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 plainly 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, nor even receive inmates or guests therein, 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. Their residences are termed rooms or lodgings; and in one place the occupation is termed a 'commodity.' The knights are placed under the control and authority of the dean and canons, and are moreover subjected to a number of minute regulations which show that this institution is altogether of an eleemosynary *87] character, and that the occupation of their residences *was subordinate to the general objects and purposes of the charity." It is impossible to distinguish that case from the present.

Hannen, for the respondent.-The sole question is, whether or not the occupiers of rooms in this hospital have an equitable freehold. Their appointment is for life: and they can only be removed for certain offences. If they take a freehold interest, the fact of this being a charitable foundation does not prevent the parties from acquiring the franchise: the disqualification by reason of the receipt of alms imposed by the 36th section of the 2 W. 4, c. 45, (a), applies only to borough. voters. The legislature may have had good reasons for making that distinction between borough and county voters. [WILLIAMS, J.-I perceive that my late Brother Maule, in the course of the argument in Simpson, app., Wilkinson, resp., says: "It would be singular if the very thing that gives these parties their qualification should be held to disqualify them."] The same learned judge, in giving judg ment, says: "These bedesmen are not, like the claimants in the last case, "-Davis, app., Waddington, resp., 8 Scott N. R. 807, 7 M. & G. 37 (E. C. L. R. vol. 49), 1 Lutw. Reg. Cas. 159,-"liable to arbitrary amotion, and therefore they have such an estate as to entitle them to vote." [WILLIAMS, J.-You must make out that these parties could sustain a bill in equity to compel the governor and assistants to put them in possession of the *particular rooms.] When once they have been assigned to them. The whole constitution of the [*88 order of military knights of Windsor was elaborately discussed in the House of Lords, in The Attorney-General v. The Dean and Canons of Windsor, 30 Law J., Ch. 529, where it was held that the lands, and consequently the increased rents, were vested in the dean and canons, and that the poor knights were not to be considered as cestuis que trust. Heartley, app., Banks, resp., therefore, will not govern the decision of this case; but Simpson, app., Wilkinson, resp., must. The facts of that case were these:-Burleigh Hospital is a freehold building, divided into rooms, each of which is of the annual value of 47., and is separately inhabited by a "bedesman," appointed under certain rules. Each bedesman keeps the key of his own room, and the suc cessor of each deceased bedesman occupies the same room as did his predecessor. No charter, deed, or other document relating to the found ation could be discovered. The ordinances referred to certain feoflees and their heirs, but none were known. By these rules, which bore date the 20th of August, 1597, it was amongst other things provided that none was to be admitted who was leprous, a drunkard, adulterer, &c., and that any one so afflicted, or guilty of any of the offences specified, should be displaced; but there was no instance on record of a bedesman having ever been displaced. The bedesmen having claimed to be entitled to vote for the county in respect of their several interests, the revising barrister decided that a legal foundation might be presumed, not necessarily investing the claimants with a corporate character, and that they were respectively entitled to a separate freehold estate in their rooms respectively. And the Court held that his conclusion was right in point of law, and warranted by the facts.

(a) "No person shall be entitled to be registered in any year as a voter in the election of a member or members to serve in any future parliament for any city or borough who shall within twelve calendar months next previous to the last day of July in such year have received parochial relief or other alms which by the law of parliament now disqualify from voting in the election of members to serve in parliament."

[WILLIAMS, J.-The difficulty I feel is this. Looking at the whole *89] *of the constitutions, it appears that the trustees are to keep the premises in repair, and are to appoint the residences and stipends to the inmates. That does not give the recipients of the charity the freehold. Suppose the trustees chose to alter the residence, who would have a right to object?] None of the rules are inconsistent with the appointees taking an estate for life. A lease for life or years, with a condition that the lessee shall not grant over his estate, or let the land to any other person, is good: Co. Litt. 204 a, 223 b; Cruise Dig. Vol. 2, p. 7, s. 34. So, "where a man makes a lease to a woman quamdiu casta vixerit; or, where a man makes a lease for life to a widow, si tamdiu in purâ viduitate vixerit:" Cruise, Dig. Vol. 2, p. 37, s. 65. Again, in Cruise, Dig. Vol. 1, p. 102, s. 7, it is said that, "if an estate be given to a woman dum sola fuerit, or durante viduitate, or to a man and woman during coverture, or as long as the grantee shall dwell in a particular house; in all these cases the grantees have estates for life, determinable upon the happening of these events." Here, a set of apartments is assigned to each inmate on his or her election and the appointment, being without any limit as to duration, must necessarily be an appointment for life.

Pickering, in reply. The occupation of the rooms by these poor persons is purely and strictly of an eleemosynary character. They could have no right, by bill in equity or otherwise, to insist upon retaining possession of the particular rooms allotted to them on their first election. Heartley, app., Banks, resp., is precisely in point.

ERLE, C. J.-I am of opinion that the claimant 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, and conse

*90] quently that the decision of the revising barrister must be

reversed. It appears from the statements in the case, that Shrewsbury Hospital was founded under the will of Gilbert Earl of Shrewsbury and, by the constitutions which are before us, it appears that the persons to be elected members or inmates thereof are to be "poor persons who shall give themselves to the service of God and to pray for the prosperity of the noble family of the founder and his posterity." They are to be "poor indigent people, well esteemed of for godly life and conversation, of good conditions, peaceable and quiet amongst their neighbours, and such as by persons of honest repute shall be judged fit objects of this charity." All the other regulations or constitutions are entirely consistent with that. It appears that in practice each of these poor persons upon his election is placed in a set of chambers, and probably continues therein from the time of his election until he dies: but the question is not as to the time of occupation, but what are his rights when placed there. It seems to me that he 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. It would obviously be contrary to the intention of the ordinances that each of these poor persons should have power to file a bill as if the legal estate was vested in him or her. I also think it would be quite contrary to the intention of the statutes relating to the qualification of voters, by which it is provided that none shall vote in the election of knights of

the shire but those who are resident within the county having freehold land or tenement to the value of 40s. by the year at least above all charges. These are the general observations which lead me to the case of Heartley, app., Banks, resp., 5 C. B. N. S. *40 (E. C. L. R. vol. 94), and I pronounce this decision with the more confi- [*91 dence because I think that case is precisely in point. And the reasons there given to show that the recipients of that charity had no equitable freeholds are equally applicable here; there being, in my judgment, no distinction in this respect between a claim of qualification to vote for a borough and for a county. Doubtless the 36th section of the Reform Act, which excludes the recipients of parish relief or alms from the right of voting, does not expressly apply to county voters. But, for the present purpose, the judgment in the case last referred to, holding that the regulations to which the inmates were subjected showed the institution to be altogether of an eleemosynary character, and the occupation of the residences by them subordinate to the general objects and purposes of the charity, so as to prevent their taking a freehold interest, is just as applicable to the case of a county as to that of a borough voter. I do not accede to the suggestion 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 judgment of the Court was confined to that. That which is represented to have been said by Maule, J., if correctly reported, was clearly extrajudicial. But, be that as it may, the adjudication was upon the other point only. The decision of the revising barrister must be reversed.

WILLIAMS, J.-I am entirely of the same opinion. *The [*92 occupier of a residence as part of the benefits of a charitable institution is not entitled to an estate of freehold therein, unless the founder has expressly assigned it to him directly or indirectly during his life. Mr. Hannen, on behalf of the respondent, has contended that there is such a direction here. I cannot, however, adopt his construction. He relies upon the first provision of the statutes or constitutions of the hospital, which states that the governor and each of the other inmates shall enjoy their rooms for their lives, together with such stipend and allowances as thereafter limited. I assume that there is sufficient to show that the claimant would have a freehold interest in the rooms allotted to him if he had any property in them. But the question is whether he has any property. I am of opinion that he has none. The language of the constitutions simply is, that the accommodation provided 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. It is simply the case of a number of persons placed on a charitable foundation, who by the regulations of the charity are entitled to be properly and reasonably accommodated with chambers to live in and other allowances. Having a right to be so supplied does not constitute them equitable owners of the rooms in which they are placed.

BYLES, J.-I am of the same opinion. This case in reality

*93] turns upon the construction of the statute of 8 H. 6, c. 7; for,

the Reform Act cuts down and does not extend the right of voting in respect of freehold qualifications. Now the 8 H. 6, c. 7, recites that "the elections of knights of shires to come to the parliaments of our lord the King in many counties of the realm of England have now of late been made by very great, outrageous, and excessive number of people dwelling within the same counties of the realm of England, of the which most part was of people of small substance and of no value, whereof every of them pretended a voice equivalent as to such elections to be made with the most worthy knights and esquires dwelling within the same counties," &c.; and then it provides "that the knights of the shires to be chosen within the same realm of England to come to the parliaments of our lord the King hereafter to be holden, shall be chosen in every county of the realm of England by people dwelling and resident in the same counties, whereof every one of them shall have free land or tenement to the value of 40s. by the year at the least above all charges." The persons entitled to vote must be independent freeholders. The inmates of this hospital have scarcely one of the indicia of property. They must accept such rooms as the governor may choose to assign to them: they cannot assign, or let, or occupy them jointly with any one else; they are not extendible on an elegit; and they may at any time be changed. It is even doubtful whether they have such a possession of their rooms as would enable them to maintain trespass against any person intruding upon them. The true nature of their occupation is only eleemosynary. The inmates are described as "poor indigent people," and as "fit objects for this charity." They clearly are not freeholders within the 8 H. 6, c. 7. It is said that this decision will conflict with that of Simpson, app., *94] *Wilkinson, resp. But that case is no authority here, because the point submitted to the Court and decided by them was not the point raised here. I agree, however, that Heartley, app., Banks, resp., was a well-considered decision, and in complete accordance with the words and the intention of the statute of 8 H. 6, and precisely applicable to this case.

KEATING, J.-I concur with the rest of the Court in thinking that the decision of the revising barrister in this case should be reversed; for, we could not possibly sustain that decision without overturning the case of Heartley, app., Banks, resp., which was decided after much consideration. The military knights there certainly did not assume so decidedly eleemosynary a character as the recipients of the charity do here. It is impossible to conceive a reception of charity under rules more stringent than those of this hospital, or more entirely inconsistent with a freehold interest. The governing body may assign to each inmate any particular set of rooms, and may change them at pleasure. There is nothing, therefore, in which it can be said that