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spondent was not the owner of an equitable freehold so as to confer a qualification to vote as claimed; but that his interest in his chambers and rooms in the hospital building was that of an occupier of part of the benefits of the charity, and a residence in the hospital, which did not make him the equitable freehold owner of a house and chambers, or justify the conclusion that it gave him a right to vote.
The revising barrister retained the name of the respondent on the register, on the ground contended for by him.
The names of thirteen other claimants, members of the same hospital, for the like qualification, were objected to for the same reason, and retained on the list on the same ground; and, notice of appeal in all the cases being given, the appeals were consolidated, and were to depend on this case.
“Statutes, constitutions, and ordinances made and established A. D. 1673, by The Right Hon. Henry Earl of Norwich, Earl Marshal of England, for the good government of the Hospitall at Sheffield, in the county of York, built by him in pursuance of and according to the will and charitable intention and direction of The Right Hon. Gilbert late Earl of Shrewsbury, deceased, great grandfather of the said Earl Marshal, as followeth :
"It is ordained and established, that, in the said Hospitall, there shall be for ever one governour and twenty poor persons, ten men and ten women, 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; and that the governour and every of them shall enjoy such chambers, rooms, and accommodations, from time to time, for their lives, together with such stipend and all other allowances as *are ryby hereafter to every of them limited and appointed; every one !" of them well and honestly behaving him or herself according to these statutes, constitutions, and ordinances :
"And, for the well government of the said Hospitall, the said Earl Marshal of England and his heires shall from time to time nominate and appoint a governour of the said Hospitall, who shall so continue for his life, unless the said earl or bis heirs shall nominate and appoint any other governour to succeed therein ; and that Thomas Chappell, gent., deputy-steward of the courts of the said Earl Marshal for the time being, Francis Ratcliff, gent., bailiff of the manor of Sheffield for the time being, John Eyre, collector of the rents, proffitts, and issues belonging to the said Hospitall for the time being, and their succes. sors in the said employments (or such others as the said Earl Marshal of England or his heirs appoint), shall be hereafter assistants to the governour in disposall of the revenues of the said Hospitall in such sort as is hereafter appointed: which said governour shall yearly receive out of the revenues of the said Hospitall for his own maintenance 131. of current moneys of England and four waine-loades of coals, and every of the said assistants 20s. yearly, for their care and services, which assistants are from time to time to help the governour as occasion requires, and particularly at such time and termes in the year when the receiver of the rents and proffitts of the Hospitall shall pay the same; and they are hereby appointed upon receipt thereof to see it laid up in the treasury house or other place in the said Hospitall from time to time as they shall receive the same; and one or more of
them shall monthly meet with the governour on the first Tuesday of
every month, in the afternoon, in the hall of the said Hospitall, to pay , the governour and poor persons of the said Hospitall their allowances
07 *respectively, according to such proportions as are hereafter " limited and appointed, out of the moneys remaining in the said treasure house, to witt, to every man 2s. 6d. by the week, and to every woman the like sum of 2s. 6d. by the week, and to every one in due season two waine-loads of pitt-coals for one whole year's firing. The assistants aforesaid, shall also, from time to time, advise and assist the governour in buying such clothing, in such manner as shall be hereafter directed, to wit, to every man and to every woman one purple gown in seven years, for festival days, and a blew one every two years, to be cloathed withall; and the governour to have, every year, a new scarlett gown; upon each of which gowns shall be ever worn a silver badge with the arms or crest of the family of the founder:
“And it is further ordained that four ledger or register books shall be kept, that is to say, the governour shall keep one, and each of the three assistants one, wherein shall be entered and registered every member of the Hospitall, after the regular election of him or her, with the days and years of their several admittances; and, upon the death or removall of any of the said poor persons, there shall be an entrance made when the same doth happen, to the end and purpose that some other person or persons may be chosen and appointed in the place or places of such person or persons so deceased or removed ; and there shall be likewise entered in the same books an inventory of all iron, brass, pewter, or any other moveable goods belonging to the said Hospitall as shall be at first bought in and from time to time bought and renewed; and they shall likewise enter from time to time in the same books what moneys shall be yearly received, and how the same hath been disbursed ; and, at the end of every year (which shall be accompted to begin and end allways at the feast of the An. 207 nunciation of our Blessed *Lady the Virgin Mary), and, on due
I examination of all receipts and disbursements, and the accompt perfected, the said governour and assistants shall set down at the foot of the said accompt what money remaineth then in the treasury, and subscribe their names thereunto: .
“It is ordained that the governour for the time being shall be a man of an honest life and conversation, religious, grave, and discreet, and fitt to govern the said poor persons and look to the affairs of the said Hospitall, able to read, write, and cast up accounts, a single man, of forty years or upwards; and if, after his being placed in the said Hospitali or house, he shall marry, then his place to be void, ipso facto, unless it be dispensed withall by the said earl or his heirs by writing under their hand:
“It is ordained that there shall be twenty poor persons, ten mer. and ten women; the men widowers or batchelors, the women widows or maides; the men and women to be three score years of age or upwards, unless any of them shall be particularly dispensed witball by the said Earl Marshal of England or his heirs : and, for the electing of any of them, the governour and three assistants, or the major part of them, shall, upon the death or removall of every person or persons,
present the names of two persons for every void place to the said Earl Marshal or his heirs, together with a certificate of their place, condition, and behaviour, and to that end and purpose the said Earl or his heirs may elect and appoint out of them one or more person or persons in the then vacant place or places of the said Hospitall. But, if it so happen that the said Earl or his heirs neglect or fail to choose or appoint one or more within the space of six weeks after due notice given to him or them as aforesaid, that then the governour for the time being and the three assistants for the time *being, or the rien major part of them, shall elect and fill up the vacancie or va. l'ou cancies. Provided always, that the said Earl Marshal or his heirs shall, at their good will and pleasure, upon any vacancie or vacancies, when he or they shall think fit, make choice of any person or persons qualified according to these statutes, without certificate, to be a member or members of the said Hospitall:
"It is further ordained that the persons to be elected shall be taken or chose out of the town or parish of Sheffield, if any person can therein be found fitt: the poor tenants thereabouts of the said Earl Marshal and his heirs to have the preference before any other in such election, if duly qualified; but, if it so happen that there be no persons in the aforesaid town and parish capable of such place according to these statutes, then the aforesaid Earl Marshal or his heirs may make choice of any person or persons qualified according to these statutes in any place or out of any other parish where he the said Earl or his heires hath any lands, tenements, or hereditaments, discended to him from Gilbert late Earl of Shrewsbury:
“The persons to be elected shall 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 fitt objects of this charity: but, if it so happen, by misinformation or mistake, that any person or persons be elected wanting such qualifications as are in and by these statutes required, or shall afterwards marry, or in anywise behave themselves contrary to these rules and constitutions, that then every such person or persons so admitted shall be removed and expelled by the governour and assistants for the time being, or the major part of them, and *another chosen in the place and room of the person or persons +91 so displaced :
"And it is also ordained, for the better preventing of idleness, that all such person or persons as are or shall be placed in the said Hospitall, as well men as women, shall dispose themselves to some work and labour, according to their abilitys and health, that they may gett somewhat towards their better maintenance, and may in some measure eat their own bread, and have wherewithal to help themselves in time of weakness or sickness:
" It is also ordained that none shall lodge with any of the poor persons in their roome or roomes, or be admitted to inbabitt there, upon any pretence whatsoever, unless licence be first obtained under the hand of the said Earl Marshal or his heires, or under the hands of the governour and assistants, or the major part of them ; but they shall be helpfull one to another, according to their strength and ability, as in charity they ought. Provided that no person or persons be hereby
hindered from helping any of the aforesaid poor persons in the day. time, when occasion requires it; and that none of the said poor persons shall lodge abroad, wander, nor begg almes, upon any pretence whatsoever, upon pain of expulsion :
“ It is also further ordained that the aforesaid scarlett gown and badge every year allowed unto the governour, upon his death or removal shall go to his successor; and that, in like manner, the respective gowns and badges of all the poor shall be delivered by the governour to such person and persons as shall from time to time succeed in their places; and that, in the year wherein they have no gowns, two shirts for every of the men and two smocks for every of *997 the women, shall be provided and delivered out of the *remain
Jing yearly allowance appointed towards the maintenance of the Hospitall aforesaid:
“It is also ordained, that, if any of the said poor persons do prophainly or frequently curse or swear, or frequent any wine tavern or alehouse, or remain there above the space of one hour in a day, or be drunk, or any otherwise misbehave themselves, that then the said governour and assistants, or the major part of them, are hereby im. powered to deduct from him or her, for the first offence, the half of their next week's allowance, which forfeiture shall be laid out in bread, and be divided equally amongst the residue of the poor in the said Hospitall; and for the second offence, one whole week's allowance; and for the third, two weeks' allowance, all to be disposed of as aforesaid; and so for every offence, after the like punishment, so often as the party shall offend. But, if it shall happen that the said person or persons so offending be incorrigible, and do not reform their lives, then the governour shall take from them their gowns and badges, and they shall be for ever expelled and amoved out of the said Hospitall; and the person or persons so expelled and amoved, with bis or her several offences, shall be entered and registered in all the four aforesaid register books. Provided that, notwithstanding any such expul. sion by the said governour and assistants, that the said Earl Marshal or his heirs may according to their will and pleasure, by writing under his or their hand, restore any person or persons so expelled as aforesaid:
" And it is further ordained and established, that, whatsoever sum or sums of money shall at the end of any year remain over and above the necessary disbursements herein and hereby appointed to be disburst and laid out, shall be by the governour and assistants for the *227 time being put into the common treasury as *aforesaid ; and,
DJ whensoever it shall be found that there remain in the said treasury, all necessary charges aforesaid being defrayed, and all charges of pen, ink, and paper, above the sum of 1001., that then all such overplus money exceeding the sum of 1001. aforesaid, shall be equally distributed amongst the poor persons in the said IIospitall according to the proportion of their allowance:
"And it is also ordained and established that whatsoever household stuff, utensils, or goods of any kind doth or shall of right belong to any room or roomnes there, shall at the death of every poor person or persons be there left and remain for the use of his or her successor or successors; and the governour of the said Hospitall for the time being
their amo" person 100%. F.2003, 19
is hereby required to see that nothing be removed, sold, or otherwise embezzled out of the rooms aforesaid but what is truly and properly their own, but that every year all the said goods be repaired and so kept and left in good order as he the said governour shall think fitt..
“And it is further ordained, that at all times when the service of Almighty God, prayers, or reading of the Holy Scriptures are performed, used, or read, either in the common hall or chappell of the said Hospitall by any person or persons thereunto appointed by the said Earl Marshal or his heirs, every person belonging to the said Hospitall, being a member of the same, may resort to the place or places when their health permitts, for the good of their soul, and to pray for themselves and the family of the honorable founder: And, when any of the said person or persons members of the said Hospitall shall die, the governour and assistants shall order and appoint that they have decent buriall, and that all the poor persons belonging to the said Hospitall who are able to go shall attend and follow the corpse of the *deceased party in their best gowns, iwo by two to the grave or
[*84 place of burial, behaving themselves soberly and gravely, as beseemes so solemne an occasion:
“And it is further ordained, that the said Earl Marshal and his heirs, anything herein to the contrary notwithstanding, doth reserve a power to himself and his heirs for ever to alter, dispense, or repeale, at his or their wills and pleasures, any of these statutes, constitutions, and ordinances, and to add such new ones from time to time as he or they shall in his and their wisdom think fitt, for the better government of the said Hospitall: Provided always that neither the said Earl nor his heirs shall divert or diminish any part of the 2001. paid clear yearly revenue appointed for the maintenance of the said Hospitall:
"And it is also ordained, that these statutes, constitutions, and ordi. nances be hung up and placed in the common hall of the said Hospi. tall, and that the governour of the said Hospitall shall there read the same four times in the year, viz., upon the eve of Lady Day, Midsummer Day, Michaelmas Day, and Christmas Day, in the presence and hearing of all the poor persons belonging to the said Hospitall, that they may not pretend ignorance when they have committed offences, and that they may likewise know where to appeal, if they have been injured or unjustly dealt withall:
"Lastly, it is ordained, in case any controversie or difference shall arise amongst any of the poor persons, that the governour shall use his best endeavour to reconcile the same; and, in case of difficulty, to crave the aid of his assistants, and settle the same; and, if any of the said poor persons shall have any just cause of complaint against the governour or assistants, they may make their application by petition or otherwise to the said Earl Marshal or his heirs for relief therein."
* Pickering, Q. C., for the appellant.—The contention between ri85 the parties on this appeal is, whether the facts bring the case within the principle laid down in Simpson, app., Wilkinson, resp., 8 Scott N. R. 814, 7 M. & G. 50 (E. C. L. R. vol. 49), 1 Lutw. Reg. Cas. 168, or within that of Hartley, app., Banks, resp., 5 C. B. N. S. 40. It is submitted that the inmates of this cbaritable foundation have no such interest in the rooms occupied by them as to entitle them to be