all that these poor men have, is, a right to ask for certain money pay. ments and allowances from the trustees; and that they cannot be said to have any equitable estate in the lands. BYLES, J.-I am of the same opinion. To entitle the party to have his name retained upon the list of voters, he must show that he is seised of an estate of freehold. It is not necessary that it should be a legal interest: it is enough if he has an equitable estate of freehold. This is not the case of a simple trust to receive the rents and profits for the cestuis que trust, or to permit and suffer them to receive them but the trustees are to receive the rents and profits, and to expend and allot a portion of them in a particular manner among the inmates of the hospital. That alone is *enough to prevent those *35] persons taking an equitable interest in the land. But the case goes further. Mr. Mellish concedes that he must avail himself of the surplus rents, in order to constitute a sufficient value. But, without deciding that the trustees take the surplus rents in trust (as to which I express no opinion), it is clear that no power is conferred upon them. by the deed to dispose of them to any prescribed person or in any prescribed manner. All they could do would be, to dispose of them to and among such persons and in such manner as the Court of Chancery might sanction or direct. For these reasons, although I at one period entertained some doubt, I entertain no doubt now that these persons have not such an interest in the lands in question as to entitle them to the franchise. Upon the authority of Freeman, app., Gainsford, resp., and particularly of the judgments of my Lord and my Brother Williams in that case, I think the revising barrister rightly held that these persons were not entitled to be upon the register. KEATING, J.-I am of the same opinion. It is, I think, clear from the statements in this case that the claimants are only entitled to claim certain money payments from the trustees who take the interest in the lands, and that they (the claimants) have no equitable estate in the land, and therefore no estate of freehold such as is necessary to give them the franchise. Decision affirmed, with costs. *36] *NORTHAMPTONSHIRE.-Northern Division. THOMAS NICOLLS ROBERTS, Appellant; ANDREW PERCIVAL, Respondent. Nov. 19. 1. Although the decisions of the Court of Common Pleas upon cases stated by revising barristers under the 6 & 7 Vict. c. 18 are by the 66th section of that statute declared to be "final and conclusive in the case upon the point of law adjudicated upon," it is nevertheless competent to the revising barrister upon a future occasion, and between other parties, again to raise the question, even in relation to the same property qualification. 2. Burleigh Hospital, a charitable foundation for a certain number of poor men called bedesmen, was endowed prior to the statute 29 Eliz. c. 5 (an act for the incorporation of public charities), and was governed by certain rules or ordinances which referred to "the feoffees and their heirs," who by lapse of time had been altogether lost sight of. The bedesmen were appointed for life, each on his appointment having a room in the hospital specially assigned to him, and which was found to be of the annual value of 41. The bedesmen were by the ordinances declared to be subject to expulsion for certain offences; but no instance of expulsion had ever been known. There was a warden, who with the bedesmen managed the property belonging to the hospital, letting a portion of it and dividing the rent between them: and, on the occasion of a railway company requiring a portion of the land, the warden and bedesmen executed the conveyance, and received the purchase-money, which they expended in improving the hospital premises for their mutual benefit. Held,-upon the authority of Simpson, app., Wilkinson, resp., 7 M. & G. 50, 8 Scott N. R. 814, 1 Lutw. Reg. Cas. 168, and distinguishing it from Heartley, app., Banks, resp., 5 C. B. N. S. 40, K. & G. 219, and Freeman, app., Gainsford, resp., 11 C. B. N. S. 68, K. & G. 448,-that each of the bedesmen had an equitable estate of freehold in the room occupied by him, in respect of which he was entitled to be registered for the couuty. 1. THOMAS WADDINGTON, of Kettering, in the county of Northampton, on the register of voters for the parish of Kettering, in the northern division of the said county, duly objected to the vote of Abraham Bell. The name and description of the voter on the register was as follows: Bell, Abraham. Lord Burghley's Hos- Freehold tenement Abraham Bell, occupier. 2. He also objected to the names of twelve other persons whose qualifications on the list were described in like manner, and depended on the like facts: and the appeals were therefore consolidated. 3. The facts as to the appointment of the several claimants, and the nature and mode of enjoyment of the qualifying property, are similar to the facts as *stated in the case of Simpson, app., Wil[*37 kinson, resp., 7 M. & G. 50, 8 Scott N. R. 814, 1 Lutw. Reg. Cas. 168 and the facts of that case are admitted and are to be taken, mutatis mutandis, as if stated as part of this case; as is also the copy of the ordinances printed in such reports. 4. Upon the objections being called on, it was contended on the behalf of the respondent that the revising barrister had no power to enter upon the inquiry, according to the 66th section of the 6 & 7 Vict. c. 18, the judgment of this Court having been given upon facts similar to those which are the foundation of the present claim. 5. The whole of the claimants in the present case had been appointed since the above judgment was delivered. 6. The revising barrister decided to go into the case, and to hear the evidence; being of opinion that the words "the case" in the 66th section referred only to the current register, or at any rate to the particular individual affected. 7. If the Court should be of opinion that this contention should. have prevailed, the names were to be retained, without reference to the remainder of the case. 8. The following additional facts were then proved: That, in the year 1846, part of the hospital premises not separately used by the then occupiers was sold to the Midland Railway Company for the purposes of a railway; that the sale was conducted by the then warden. and bedesmen, as owners, without the intervention of any other person; that the warden and each of the bedesmen signed the conveyance to the company; and that the money was paid to the warden and bedesmen, and expended by them in erecting buildings upon part of the garden attached to the hospital, which buildings are now used for a washhouse by the warden and bedesmen, as they have occasion. [*38 9. It was then contended by the objector,-that, assuming the legal origin of the foundation, if the claimants had any estate, it was only as members of a corporation aggregate, and that the additional facts above stated led to this conclusion; that they had no freehold estate; that, if they had, it was only a joint tenancy in the whole hospital, and not an exclusive and separate one in each of the rooms, and that this also appeared from the new facts; that they were in the receipt of alms; and that, looking at the recent decisions, and especially at Freeman, app., Gainsford, resp., 11 C. B. N. S. 68 (E. C. L. R. vol. 103), K. & G. 448, the claims were bad. 10. The revising barrister overruled these objections, and retained the several names on the list of voters; being of opinion that the facts were substantially unaltered, and that therefore there was nothing to disentitle the claimants to the benefit of the judgment already given by this court upon the same foundation, whatever were the reasons of such decision; and also that they did not receive alms, within the meaning of the 36th section of the 2 W. 4, c. 45. Hannen (with whom was Underdown), for the appellant. The first question is, whether the revising barrister had any power to go into the case, after the decision of this court in Simpson, app., Wilkinson, resp. The contention that he had not rests upon the 66th section of the 6 & 7 Vict. c. 18, which enacts that "every judgment or decision of the said Court [of Common Pleas] shall be final and conclusive in the case upon the point of law adjudicated upon, and shall be binding) upon every committee of the House of Commons appointed for the *39] trial of any petition *complaining of an undue election or return of any member or members to serve in Parliament." That clearly means that the decision shall be conclusive only in the case in which it is pronounced. [The Court here intimated their acquiescence in this argument.] The first question then is, whether these claimants have a freehold interest for life, within the 18th section of the Reform Act. The claim put forward here is, that the inmates of this hospital have an equitable estate of freehold in the rooms they occupy. The point is not concluded by the decision of the Court in Simpson, app., Wilkinson, resp. The Court upon that occasion felt itself to be hampered by the way in which the case was stated by the revising barrister: and, when the counsel for the appellant came to consider what was the effect of the eleemosynary character of the gift, he was stopped by the Court, because the point had not been raised before the revising barrister. And, in giving judgment, Tindal, C. J., says: "It appears to me that the only question open to us in this case, is, whether the revising barrister was wrong in law, in presuming a legal commencement to the estate of these bedesmen. I think his decision was right, and that the facts fairly warranted him to presume,-which was all that was necessary,-that the estate existed by virtue of the Queen's license before the passing of the 29 Eliz. c. 5." The question here is, whether the circumstances do not prevent these persons being equi table owners. Dealing with that case in Freeman, app., Gainsford, resp., 11 C. B. N. S. 68, 91 (E. C. L. R. vol. 103), K. & G. 448, Erle, C. J., says: "The question submitted for the opinion of the Court in that 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. [*40 And the judgment of the Court is 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 character of the holding in Freeman, app., Gainsford, resp., where the parties were held to have no estate, is not substantially different from that in the present case. In the case of the military knights of Windsor,-Heartley, app., Banks, resp., 5 C. B. N. S. 40, 57 (E. C. L. R. vol. 94), K. & G. 219,-Cockburn, C. J., delivering the judgment of the court, says: "It appears to us, that, if we were to hold that the occupation of a residence as part of the benefits of such a charity was an occupation as owner, we must say that any occupation of a separate residence in an almshouse, where the appointment by the grant of the founder is during good behaviour, would be a freehold occupation as owner, and, consequently, if of sufficient value, would give a right to vote,-a conclusion to which we are certainly not prepared to come." Speaking of Simpson, app., Wilkinson, resp., he adds: "That is a very different case from the present. In that case, no trustees were to be found. The recipients of the charity had the direct and uncontrolled management of the property in their own hands: and the only question raised in the case was, whether the revising barrister was right in presuming a legal commencement of the estate of the bedesmen by the royal license, prior to the passing of the 39 Eliz. c. 5. There is nothing in the authority of that case which precludes us from fully considering in this whether the occupation of their houses by the military knights is an occupation as owners." The result of the decisions seems to be this, that, in order to judge what is the *character of the holding, and see whether or not it amounts to [*+1 an ownership, regard must be had to the general character of the institution of which the inmates are permitted to receive the benefits. Upon reference to the ordinances set out in the report of the case of Simpson, app., Wilkinson, resp., it is manifest that these parties have no legal estate, but that their holding is altogether of an eleemosynary character. Reliance will probably be placed on the 21st of these ordinances, which provides, that, as these poor men shall have at the first their several rooms allowed them in the alinshouse, so shall they during their lives or their continuance in their places continue their lodging, and every one as he shall succeed to the void places, so shall he succeed in the lodgings without any change," as giving a somewhat more permanent character to the holding than in some of the other cases: but it is to be observed that that is to be found amongst the rules for the internal government of the institution. The observations of Williams, J., in Freeman, app., Gainsford, resp., would have been equally applicable in the case of Simpson, app. Wilkinson, resp. [ERLE, C. J.-In Freeman, app., Gainsford, resp,, the surplus revenues of the hospital were vested in the trustees for the purpose of enlarging the charity and adding to the number of the inmates. The trustees were clothed with active trusts, and had a general control over the funds of the hospital, the C. B. N. S., VOL. XVIII.-4 .6 inmates merely occupying the rooms as recipients of the benefits of the charity. That is a very different thing from having an equitable estate in the lands. In Simpson, app., Wilkinson, resp., the warden and bedesmen act as absolute owners, letting a portion of the building, and dividing the rent amongst them.] That arose from the circumstances of the heirs of the feoffees being unknown. [ERLE, C. J.-In the case of a lost deed, user *is evidence of its contents.] We *42] have here the ordinances, which show the precise position of the inmates, which does not differ from that of the parties in Heartley, app., Banks, resp., and Freeman, app., Gainsford, resp. The circumstances of the inmates receiving the rent for the granary, and disposing of the proceeds of the sale of a portion of the hospital to the railway Company, are fully accounted for by the fact of the feoffees and their heirs being lost sight of. In order to entitle these persons to vote, they must have a freehold interest, legal or equitable, in the rooms they occupy. Looking at the general character of the ordinances by which this charity is regulated, it is clear that the occupation of the rooms by these parties is only as objects of the bounty of the founder, without any scintilla of ownership. Field, Q. C., contrà, was not called upon. ERLE, C. J.-I am of opinion that the decision of the revising barrister was right. I was a party to the judgment in Simpson, app., Wilkinson, resp., 7 M. & G. 50 (E. C. L. R. vol. 49), 8 Scott N. R. 814, 1 Lutw. Reg. Cas. 168. This Court were then of opinion that the inmates of Burleigh Hospital had a freehold interest in the rooms assigned to them: and I now entertain the same opinion. The origin of the hospital was unknown, and we held that the revising barrister was warranted in inferring from the ordinances and the statute 39 Eliz. c. 5 (referring to a former statute of 35 Eliz. c. 7), that it had been founded by Lord Burleigh under license from the Crown, and endowed with a grant of lands to trustees or feoffees in trust for the use of the bedesmen. It seems to me that the interest of the inmates under such an endowment, if it stood there, would have been an *43] equitable freehold in the property, the legal estate being in *the trustees, just as, if incorporated under the 39 Eliz. c. 5, the legal estate would be vested in the corporation,-except that in that case the members of the corporation would acquire no right to vote. The difference consists in this. Members of a corporation aggregate are not qualified to vote, because the interest in the property is vested in the corporation: and that is the way in which by far the larger portion of these hospitals are endowed. But, if the lands are conveyed to feoffees in trust for the members, the legal estate would be in the feoffees, and the equitable interest would be in the members of the institution according to the terms of the deed. Where the deed. is lost, the terms of it would be to be presumed from the manner in which the property had been enjoyed. Now, the property belonging to Burleigh Hospital has been dealt with in a way that is consistent with the supposition which I have put forward. Each member when elected was placed in a certain room for life. The property of the hospital was managed by the warden and bedesmen as the legal owners, without interference by any one. There had been feoffees, but they were unknown. The warden and bedesmen let a portion of |