most innocent and laudable kind, but *still differing from the *822] pure pursuit of science. If I were called upon to decide the point, I should say that the contributions were not voluntary. I believe one of my learned brothers, who subscribes, looks to the amusement which he and his family and friends are to derive from their access to the gardens; and such subscriptions, it seems to me, are not voluntary contributions to the Society within the meaning of the Act. Then we find that the gardens are not exclusively devoted to objects which, if they were the sole objects, would give the Society the character of a scientific institution, but to objects also which are not necessary or even subsidiary to the promotion of science. I am therefore of opinion that the claim to immunity is not substantiated.

ERLE, J.-I think that this Society is not within the statutory exemption. It does promote science; and it does good by creating a predilection for science: but I cannot say that the premises are occupied exclusively for purposes of science. They are clearly occupied also for purposes which are not sufficiently proximate to that of the promotion of science to support the exemption. As to the question, whether the contributions are voluntary, we have expressed an opinion that contributions are not so where the intention is to purchase a private convenience, as is the case, I believe, with many institutions which also embrace scientific objects.

CROMPTON, J.-I am of the same opinion. I am glad that the purposes of the Society are not confined to such as are merely scientific: I am not sure that the additional object which is attained, that of bringing people together for rational amusement and recreation, is *823] not more important than the scientific object. But, as the Society is not exclusively devoted to scientific purposes, the exemption cannot be sustained.

(No fourth Judge was present.)

Judgment for respondents, with costs.

The QUEEN v. The Inhabitants of BURGATE. May 31.

M., seised in fee of land, devised it to A. for life, and bequeathed all his personalty to A., and directed that, after A.'s death, the land should be sold within six months, and equally divided between devisor's six children; if any of the children should be dead, the share to be equally divided between the children of such child: and executors were named; but no estate or power of sale was expressly given to them.

The devisor survived A., and left two daughters, and grandchildren by another daughter, some being minors at the time of the devisor's death. The land was sold more than seven months after devisor's death; and, during the whole interval, one of the surviving daughters, with her husband, resided on the land.

Held that a settlement was gained by such residence.

ON appeal against an order of two justices, removing Ann Torbold,

widow, and her three children, aged respectively twelve, eight, and six years, from the parish of Mellis to the parish of Burgate, both in Suffolk, the Sessions confirmed the order, subject to a case, which was, in substance, as follows.

William Torbold, the husband of the pauper Ann Torbold, previously to his marriage with her, acquired a settlement in the appellant parish of Burgate, by hiring and service for a year ending at Old Michaelmas, 1826.

But the said Ann Torbold was the daughter and one of the coheiresses of John Mullinger, late of the parish of Wortham in Suffolk. At the time of her marriage with W. Torbold, which took place in June, 1829, she resided with her father in a house of his own. He was seised in his demesne in fee simple of this house, and *of the premises [*824 thereunto belonging, and also of about an acre of land adjoining the same and the whole was situate in the parish of Wortham. Upon the marriage of W. and A. Torbold, W. Torbold came to reside with his wife and her father in the house in question; and all of them continued to reside together until the death of John Mullinger. He died on or about 31st August, 1844, having first made and published his last will and testament in writing, duly executed and attested for passing real estate. The following is an extract.

"I, John Mullinger," "do declare this to be his last will and testament, however imperfect it may be written. Itim, I give and bequeath to my said beloved wife Ann Mullinger my freehold estate and all that appertain to it during her naturall life, leying in Blow Norton in the county of Norfolk. Itim, I allso give to my said beloved wife Ann Mullinger my other freehold estate, and all that appertain to it, leying in Wortham in the county of Suffolk, during her natural life. Itum, I allso give unto my beloved wife Ann Mullinser all my live and ded stock, with goods and chattels, bills and bonds, corn, wither in the barne or on the land, to do with as she please: but, providing their should not be anuff money to bury me and pay all just bills, the same shall be taking out of the said goods and chattels. Itum, after my beloved wife is deceased, the same two freehold estates shall be sold within six months, and bee equily divided betwin my six children; and providing any of them shold be ded, their farther or moother's share to be equily divided betwin their children. Ware of i chose for my executors or executricks Ann Mullinger, my bloved wife, and William Hogg, my son in law, ware of thay shall be paid their reasonable expences."

*Ann Mullinger, the wife of the testator, predeceased him, and [*825 died in or about January, 1842. The only descendants of the testator alive at his decease were his daughter the pauper Ann Torbold, his daughter Mary Green, since deceased, but then living, married to Charles Green, and his grandchildren, some of whom, at the time of VOL. III.-64

2 U

the testator's death, were minors, being the lawful issue of his daughter Susannah Hogg, then deceased, and William Hogg her husband, Susannah Hogg having intermarried with William Hogg on 5th July, 1814, and having died in March, 1829.

The property of the testator described in his will as his freehold estate lying in Wortham in Suffolk consisted of the house and premises and land above mentioned.

W. Torbold, and the pauper A. Torbold, his wife, and his family, continued to reside and sleep in the said house, and occupied the said house and premises and land from the death of the testator until the same was sold, under the provisions of the will, in April, 1845: and, on the sale, W. Torbold and Ann his wife received one third part of the purchase-money.

The pauper children are the lawful issue of the marriage of W. Torbold and A. Torbold, and are of the ages above mentioned (twelve, eight, and six), and unemancipated.

W. Torbold died on or about 3d January, 1852.

Neither W. Torbold, nor A. Torbold, his wife, nor their children, ever resided at so great a distance as ten miles from the parish of Wortham.

The question for the opinion of the Court of Queen's Bench is: Whether the facts stated show a settlement of Ann Torbold, the widow, in the parish of Wortham. *If the Court shall be of opinion in the affirmative, then judgment is to be entered for the appellants: but, if not, for the respondents.

*826]

It

N. Palmer and Power, in support of the order of Sessions.-The question is, whether the pauper Ann took such an interest under the will as to enable the residence in Wortham to confer a settlement. is clear that the devisor meant to dispose of all his realty and personalty. His wife has an absolute property in the personalty, and a life estate in the land, which includes the land at Wortham. The executors must be intended to take all that in which the wife had only a life interest: there is no appearance of any intention to give an intermediate interest. A devise, where the intention is clear, will not be construed so strictly as a conveyance inter vivos. If the executors did not take the legal remainder in fee, it was undisposed of, and went to the heir at law; but the heir took no beneficial interest. It will be said that here the wife, being one of two coheiresses, took at any rate a legal estate as trustee for the purposes of the will: and it is true that Nolan, 2 P. L. 105 (4th ed.), says that is "immaterial whether the party has a beneficial interest in the estate: a mere trustee may acquire a settlement, for nobody can take the estate from him, and it is sufficient that he reside in the parish forty days, and cannot be removed from it." For this he cites Rex v. Oakley, 10 East, 491: that was the case of a guardian in socage; but the Court clearly there considered the case distinguishable from that of a trustee without interest, on the ground of the superintend

[*827

ence which the guardian was *bound to exercise over the infant's estate. In Rex v. Stone, 6 T. R. 295, it was held that the executor of a tenant from year to year of an estate under the value of 10i. might gain a settlement by residence on it: but Lord Kenyon seems to put the decision on the ground that the executor would hold the land though for the benefit of others: the trustee of an outstanding term could not gain a settlement: here the heirs would merely be the persons from whom the executors of the will would take the estate, and would have neither an interest entitling them to reside nor a duty requiring them to do so. The heirs could not be charged with a breach of trust. [Lord CAMPBELL, C. J.-Suppose rent became due before sale.] The executor would distribute it among the parties entitled to the proceeds of the sale. But, further, the executors took the fee. They would have to convey a fee simple to the vendee under the will. [Lord CAMPBELL, C. J.-Do you contend that there can be no power of sale without a legal estate in the land?] In Shapland v. Smith, 1 Br. Ch. Ca. 75 (referred to in Silvester dem. Law v. Wilson, 2 T. R. 444), it was held that, where trustees had to pay rates, taxes, and repairs, and then pay over the surplus to A., they took the legal estate. The executors here would be bound to collect the rents, till the sale. Nor is there any settlement in respect of the pauper's equitable interest. In Regina v. St. Margaret, Leicester, 2 Q. B. 559 (E. C. L. R. vol 42), land was devised to a trustee, in trust to sell and divide the estate among the devisor's children, and to the separate use of such female children as should be married: and it was held that the husband of one of such children, residing on the land before sale, did not gain a settle[*828 ment; and Rex v. Natland, Burr. S. C. 793, was there overruled. [Lord CAMPBELL, C. J.-How do you collect from this will that the sale is to be made by the executors ?] That appears from Forbes v. Peacock, 11 M. & W. 630.† A party entitled to the proceeds of the sale of an estate may, in general, elect to hold the land: but that cannot be so here, because the pauper was one only of persons so entitled, some of whom were minors and incapable of electing. The pauper was therefore merely a legatee of personalty. [ERLE, J.-In the argument in Regina v. St. Margaret, Leicester, 2 Q. B. 559 (E. C. L. R. vol. 42), Rex v. Wivelingham, 2 Doug. 767, was mentioned.] The devisee in that case was capable of electing to take the land, and did elect. [ERLE, J. One devisee was a married woman.] That point was not brought before the Court. [CROMPTON, J.-No consent of the other devisees. was necessary here: the wife was entitled to reside as heir.] It is not found that the residence was in fact in that character.

Dasent and H. Mills, contrà, were not called on.

Lord CAMPBELL, C. J.-It seems to me quite clear that there is here a legal title to the land coupled with a right to the proceeds of the sale.

ERLE, J.—I think a settlement was gained. As I construe the will, the legal estate descended to the pauper, with a right to reside till the power of sale should be exercised. The only case, where a pauper has been removed from land in which he has any *interest, is Regina

*829] v. St. Margaret, Leicester, 2 Q. B. 559. Without saying more of that decision, the legal estate is here in the pauper.

CROMPTON, J.-The pauper had a clear legal estate in the land, and could not be removed.

(No fourth Judge was present.)

Order of Sessions quashed.

IN THE EXCHEQUER CHAMBER.

BOUGLEUX v. SWAYNE and Another. June 1.

A plaintiff in the Queen's Bench, after judgment there for defendant, suggested error in the Exchequer Chamber, which defendant denied. Plaintiff resided abroad out of the jurisdic/tion of the English Courts. He had, by order of the Queen's Bench, given security below for costs and the costs incurred in that Court exceeded the amount for which security had been given.

On the application of the defendant, after denial of error, the Court of Exchequer Chamber ordered the plaintiff to give security for costs in error to the satisfaction of the master of the Court below, proceedings to be stayed in the meanwhile.

In this case, judgment having been given in the Court of Queen's Bench for the defendants, upon a special verdict, the plaintiff suggested error in law, which the defendants denied.

Bovill now moved that the plaintiff should give security for costs in error to the satisfaction of the Master of the Court below, and that in the mean time proceedings should be stayed. He stated the following facts. (a) The plaintiff was a foreigner, resident out of the *830] *jurisdiction of the English Courts. He had given security for costs in the Court below, which included the costs of a former trial. The security given was to the amount of 4007.; but the costs amounted to 4587., subject to a question which was pending on the taxation, and which might have the effect of increasing the costs. An application to the same effect had been made to Crompton, J., at Chambers, who was of opinion that the case was one in which he was not entitled to interfere, even if he were disposed to do so.

Bovill, in support of his motion.-In Pray v. Edie, 1 T. R. 267, where the Court of Queen's Bench stayed proceedings till security for costs should be given by the plaintiff, who resided in America, the reason for granting such an application is stated by Buller, J.: "if a verdict be given against the plaintiff he is not within the reach of our law so as to have process served upon him for the costs." The same rule was adopted by the Court of Common Pleas in Benazech v. Bessett,

(a) No affidavit was used on either side, the counsel agreeing as to the facts.