said in Rex v. Spencer, the select body "have restrained the electors, not generally, but with such a distinction as in effect places the election in themselves.' 3 Burr. 1835. The number of electors is narrowed here from 1100 to at most forty, and that a fluctuating and indefinite body: and the qualification is added, of being a past master. The charter directs that the fraternity shall elect de seipsis; the by-law establishes a select body, who elect themselves and elect out of themselves.

*It is said, that the election by the limited body out of themselves is [*501 not part of the by-law, and that, in fact, masters have been elected who were not at the time members of the court of assistants. But the affidavit does not specify the instances, their number, or date: they may even have been before the making of the supposed by-law. It stands, therefore, without any substantial contradiction, that the usage has been for this body to elect, and also to elect from among themselves: if a by-law is to be inferred from usage, it must be collected from the whole usage-the vicious part as well as the sound; they have no right to separate one from the other; or if any question arises whether or not the practice has in fact been vicious, or whether the by-law is to be connected with that vicious practice, or only with so much of the custom as is valid, those points ought to be submitted to a jury, and not decided by the Court on this application.

:

DENMAN, C. J. I, for one, should be very sorry to withdraw from the consideration of a jury any case that was properly a subject for their inquiry and whenever a proper doubt is raised upon any material fact regarding the title of a public officer, this Court, I think, will not hesitate to refer it to the proper tribunal. But, here, I am of opinion that no sufficient case is made out: for, without going into nice distinctions, it ought, at least, to be shewn to the Court, before they allow parties to be subjected to the trouble and expense of such a proceeding as this, that there is some reasonable ground for doubting the title that is called in question. In the present case two objections are raised: first, that the number of electors is improperly limited; secondly, that *the body of persons eligible is also narrowed by the by-law on which, as it is [*502 assumed, the practice, with regard to these elections, must be grounded. But I am not sure that, in this case, the party against whom the application is made would rely on such by-law, or need do so. The first objection is certainly not a valid one in point of law, unless clear grounds can be shewn for saying that the limitation of the electing body was unreasonable. In Rex v. Spencer, 3 Burr. 1827, it did so appear; but the present case is not brought within that; and it is perfectly understood as law, that a mere limitation of the number of electors is not in itself any objection to a by-law. The other point taken, namely, that the body elected from is narrowed, would undoubtedly be fatal to any by-law, though found by a jury to have existed; but it does not strike me that the objection is raised, even by the affidavit of Mr. Franks, when that is properly sifted. It is stated by him that the elections have, for a great length of time, been made out of a certain class; but the distinction is so obvious between a limitation of the known number of electors, and a practice of electing out of a limited class, the motives for which election cannot in each instance be known, that it does not appear how any mistake can arise between one and the other. It is sworn, also, that there have been exceptions to the latter practice; and, under these circumstances, I should think it most unreasonable to presume the existence of a by-law corresponding with that practice. This was the only doubt upon which the Court would have been inclined to pause; and as we all think, on examining the affidavits, that this doubt is not sufficiently raised, there is no prima facie case to warrant us in calling these gentlemen to further question.

[*503

LITTLEDALE, J. The charter of Rich. 2 empowers the fraternity to elect a master and warden de seipsis, but does not prescribe the mode. For that we must refer to the usage. Now the usage, as far back as 1488, appears to have

been for the master, wardens, and assistants who had served the office of master, to elect the master. The charter of 18 Hen. 7, confirms former usages, and therefore the question is, whether this usage was valid. That the number of electors may be restrained by usage or by-law, was fully admitted in Rex v. Westwood, 7 Bingh. 1; but it is said that the present usage is invalid, because it must be taken altogether as shewn by the practice stated on affidavit, and the effect of the practice is to restrain the number of persons eligible, and prevent the choice from being made out of the general body of freemen. There is no doubt that a usage or by-law having this effect would be bad: the reason given for narrowing the number of electors, namely, the avoiding of confusion, does not apply to it. But here, although the choice has generally been made out of the limited body, it does not follow that the belonging to that body was a necessary qualification. It may be that the master has usually been chosen out of the court of assistants, the members of that body having more experience and knowledge of the affairs of the company than any other persons; but there is *504] not enough on the affidavits to shew that this was part of the same *usage which narrowed the number of electors, that both practices commenced at the same time, or that they are to be connected with one and the same by

law.

TAUNTON, J. Since the Case of Corporations, 4 Rep. 77 b, it has almost universally been considered, that a by-law narrowing the number of electors might be supported: but a by-law restricting the number of persons eligible has been always held bad. The Court must not, in the present case, be understood as suggesting even an inclination of opinion that such a by-law could be maintained. But, for the purpose of inducing the Court to grant this rule, an ingenious mode of putting the case has been adopted. It is said that if a doubt exists the question should be sent to a jury: and here, as the affidavits state a uniform practice of electing the master from the court of assistants, which is represented to be a narrowing of the body of persons eligible, an attempt is made to couple this with the practice by which the number of electors has been restrained, and to represent both as one solid, compact body of usage from which the Court is to presume one entire by-law; and it is contended that as this supposed by-law, if bad in one respect, would be bad altogether, sufficient doubt is raised to require the intervention of a jury. But I agree with my Lord and my brother Littledale, that the circumstances here do not lead to a necessary inference of any one and entire usage or any by-law of the nature suggested. As to the part which is supposed to limit the persons eligible, the practice in that *505] respect does not appear to be uniform. It is stated *(though the affidavit on this subject might possibly have been more explicit), that there have been some exceptions, though it is not said when or in what instances; but upon this statement there is not the same ground for presuming a usage narrowing the numbers of the eligible, as for referring a like usage in the case of the electors.

It appears to me, however, that this case may very fairly be decided without reference to any presumed by-law. It may be that, if the case turned upon such a by-law, sufficient uncertainty might exist (such by-law not appearing on the corporation books) to send the question to a jury: though I do not mean to say that in every case where the circumstances raise a strong presumption, the matter must necessarily be sent to a jury. The argument, however, would be forcible, in such a case, in favour of the rule. But in the present case, it appears from the charter of 15 Edw. 3, that this guild existed before the time of legal memory. That dates from a period in the reign of Rich. 1, which was from 1189 to 1199. The next charter, of Rich. 2, confirms not only the charters of Edw. 3, but also the good customs of the guild not therein expressed, and which they have used and enjoyed from time immemorial. So that the company, at these periods, was governed not only by charters, but by customs which had obtained contemporaneously with them. The charter of Rich. 2,

[*506

goes on to confer upon them the liberty of choosing a master and wardens de seipsis, quotiens eis placuerit, &c., prout melius sibi placuerit. The mode of election is not prescribed, nor the persons by whom it is to bo; in the absence of such direction the common law right of election would be in the whole body; and if there be a custom to the contrary, confirmed afterwards by a charter, such custom is not in derogation of the previous charter, but only of the common law right. The next important charter is that of 18 Hen. 7, which corresponds to the year 1502, 3. Now, it is admitted that the mode of election in dispute here had prevailed from the year 1488; and this, which is an inspeximus charter, comprehending within itself all the previous ones, confirms them, and grants, among other things, that the master and wardens there named, and their successors, shall have and enjoy all the liberties, franchises, privileges, and customs which the master and wardens of the fraternity of tailors and linen armourers had at the time of making these presents, or which they or their predecessors have, before this time, possessed or held, or which have been granted to the said guild or fraternity. If, therefore, the usuage of electing a master by the master, wardens, and assistants had prevailed before the granting of this charter, it is thereby expressly confirmed. I do not go so far as to say, that this charter, because made with the assent of the lords spiritual and temporal, has the force of an act of parliament. Lord Coke, indeed, lays it down that nothing can be so considered unless it appear to have received the triple assent of king, lords, and commons. (a) I will not say that this grant of Hen. 7, wanting the assent of the commons, is to be looked upon as a statute, but if not a more binding, it is a more solemn and considered instrument than a charter granted ex mero motu regis: and as the custom in question existed when it was granted, it may be regarded as incorporating that *custom, and regulating the mode in which the election of master was thereafter to be car- *[507

ried on.

PATTESON, J. I agree with my Lord and the rest of the Court, that this rule ought to he discharged. The first objection, that the practice in question narrows the number of electors, is answered by shewing that it has prevailed ever since the year 1488; and whether such usage be referable to a by-law, or to immemorial custom, it is clear that it may have had a legal commencement. I do not agree in the observation which has been made, that it would have been better if this Court had looked more at the terms of charters, and less at the usages that have prevailed. I have always understood the practice of our predecessors to have been to look carefully at usages which have existed for a great length of time, and to refer them to a legal origin if they can have had one; I do not think the reflection upon that practice well founded, and I certainly should not think myself authorized to break through it. As to the second objection, the mere circumstance that the master has been elected from the court of assistants is of no importance, unless it appear that such election is governed by some regulation or by-law which prevents a choice from the body at large; for a member of the Court is not the less a member of the general body. The whole question then is, if there be any such usage? If there were, it is not contended that it would be good: and if there were a reasonable doubt as to its existence, the question ought to go to a jury. But is there any reasonable doubt? I am convinced that there is not, principally upon the grounds already stated by my Lord. The circumstance of a particular body always electing is clear and notorious, being in derogation of the general right; it cannot [*508 have escaped notice, and must be referred to some known by-law or custom. But the practice of electing from a particular body is not necessarily referable to any such law or usage. The parties may have chosen so to elect; but no inference arises that they are bound to do so. I do not think, therefore, that the affidavit of the relator lays sufficient ground for sending this case to a jury;

(a) Co. Litt. 159 b. 4 Inst. 25. The Prince's Case, 8 Rep. 40.

and the affidavits on the other side shew that persons have, in fact, been elected who were not members of the court of assistants. As the Court gives its judgment on these grounds, it is unnecessary to state any opinion on the other point raised, whether or not a quo warranto lies in a case of this description. Rule discharged, without costs.

MARSHALL, Assignee of DAVIS, a Bankrupt, v. BARKWORTH. Jan. 28.

The act 1 & 2 W. 4, c. 53, s. 42, does not give validity to commissions of bankrupt founded on concerted acts of bankruptcy; and, therefore, the execution of a deed, whereby a trader assigns all his property to a trustee for the benefit of all his creditors, is not an act of bankruptcy sufficient to support a commission founded on the petition of a creditor who was either party or privy to such deed.

TROVER. Plea not guilty. At the trial before Alderson, J., at the Spring assizes for the county of York, 1832, it appeared that the bankrupt, being indebted to Messrs. Raikes and Co., had given them a warrant of attorney, upon which judgment had been entered up by nil dicit, and a fi. fa. indorsed to levy 10367. issued on the 3d of June 1831; and on that day the defendant, the *509] sheriff of Hull, seized the goods of the bankrupt. At the time when the sheriff's officer entered, Davis, the bankrupt, observed that it would be better for him to commit an act of bankruptcy, to secure the property to his general creditors. Woolley, the bankrupt's attorney, who was present, objected to this, saying that he should suffer by it. On the 6th of June, however, Davis executed an assignment of all his property to a trustee, for the benefit of his creditors. It was proved that, between the 3d and 6th, Woolley had been seen in London, in company with the plaintiff, who was afterwards the petitioning creditor; and the case for the defendant was, that Woolley had been induced by the plaintiff to forego his objection, and concur in Davis's becoming bankrupt. The assignment was the act of bankruptcy relied upon in support of the commission, which issued on the 9th of June. The goods were sold by the sheriff between the 9th and the 20th.

The learned Judge told the jury to find for the defendant, if, upon the evidence, they thought that the act of bankruptcy was concerted with the petitioning creditor; otherwise for the plaintiff. The jury having found for the defendant, a rule nisi was obtained for a new trial, on the ground of misdirection. F. Pollock, Archbold, and Cresswell now shewed cause. The question is, whether an assignment by a trader of all his goods, made for the purpose of founding a commission on it, be an act of bankruptcy. The concert between the petitioning creditor and the bankrupt is a fraud upon the policy of the bankrupt law, and makes the assignment void. The statute 6 G. 4, c. 16, s. 3, enacts, that if any trader there mentioned shall make "any fraudulent grant or convey*510] ance of any of his lands, tenements,* goods, &c., or any fraudulent gift of any of his goods, with intent to defeat or delay his creditors, he shall be deemed to have thereby committed an act of bankruptcy." Here the assignment was not made with an intent to defeat or delay the creditors of the bankrupt, but that it might be used for the purpose of procuring a commission to be issued. It is not, therefore, an act of bankruptcy within the words of the statute. The fact of the act of bankruptcy having been concerted between the petitioning creditor and the bankrupt, is not only a ground upon which the Court of Review would supersede the commission, but it makes a commission founded on such act of bankruptcy bad in a court of law. In Shaw v. Williams, Ryan & Moody, 19, Lord Tenterden, C. J. said such an act was no act of bankruptcy. Where such an assignment constitutes an act of bankruptcy, it is because it is fraudulent; but a party who assents to it is estopped from saying that it is so.. VOL. XXIV.-15

The validity of the commission depends on the right of the creditor to petition: and a party who has signed such a deed cannot, as petitioning creditor, set it up as an act of bankruptcy: Bach v. Gooch, 4 Camp. 232, Bamford v. Baron, 2 T. R. 594, n. a., Prosser v. Smith, Holt N. P. C. 442, Ex parte Harcourt, 2 Rose, 213, Tope v. Hockin, 7 B. & C. 101, Ex parte Gane, 1 Mont. & M'Arthur, 399, Tappenden v. Burgess, 4 East, P. of Crown. Then, the only act of bankruptcy proved in this case being one concerted between the bankrupt and petitioning creditor, the commission cannot be supported. It may be said the law has been altered by 1 & 2 W. 4, c. 56, s. 42, which enacts, that from and after the passing of that act, no commission of bankrupt shall be superseded, nor *any fiat annulled, nor any adjudication reversed, by reason only that the commission, fiat, or adjudication has been concerted by and between the petitioning creditor and the bankrupt, except where any petition to supercede a commission for any such cause shall have been already presented, and shall be then pending. But that clearly applies only to cases where the commission, fiat, or adjudica tion has been concerted between the petitioning creditor and the bankrupt. It leaves the law, as to concerted acts of bankruptcy, just as it was before.

[*511

Wightman, contrà. Davis committed an act of bankruptcy by assigning all his effects, because he thereby deprived himself of the means of carrying on his trade. Such an assignment by a trader may be either fraudulent upon the creditors, or may be fraudulent only as contravening the policy of the bankrupt statutes. A person who is privy to a fraudulent assignment of the first description cannot set it up as an act of bankruptcy; but if a party procure an assignment of the latter description, he may. In Back v. Gooch (as reported in Holt's N. P. C. 13), the assignment appears to have been to trustees, for creditors whose debts respectively amounted to 307. In Tope v. Hockin, 7 B. & C. 101, it does not appear what the trusts were. Here the assignment was made for the purpose of causing an equal distribution of the bankrupt's effects among all his creditors. It is therefore to be referred to an act of duty rather than of fraud, when no purpose of fraud is proved; as was laid down by Lord Ellenborough, in Pickstock v. Lyster, 3 M. & S. 371. Then the 1 & 2 W. 4, c. 56, s. 42, applies in terms to *concerted commissions only, but, by construction, must [*512 extend to all things necessary to support the commission. Construing it liberally, it must mean that, in all cases where the commission was formerly liable to be superseded on the ground of concert, it should no longer continue so.

DENMAN, C. J. Before the late statute 1 and 2 W. 4, c. 56, s. 42, the act of bankruptcy relied upon in this case could not have been set up by the petitioning creditor, or by any other creditor who was a party, or privy to the deed of assignment. The question is, whether that act has made any difference in the law. It appears to me that it has studiously avoided doing so, and that it leaves concerted acts of bankruptcy as they were before. I take it to be clear, that where the thing done as an act of bankruptcy is done by concert with a particular creditor, he cannot afterwards come into court and set that up as an act of bankruptcy. The fraud is not as to him, but as to the creditors generally; the intent to delay them gives it the character of fraud. The stat. 6 G. 4, c. 16, ss. 6 & 7, as to concerted declarations of insolvency, raises a strong inference that all other concerted acts of bankruptcy were at that time considered as rendering a commission invalid.

LITTLEDALE, J. A party colluding with a bankrupt, who commits an act of bankruptcy for the purpose of founding a commission upon it, does it with some view of benefit to himself, and the law will not allow him to ground a commission on such an act of bankruptcy. The 6 G. 4, c. 16, s. 6, enacts, that a declaration of insolvency left at the Bankrupt Office and duly advertised, *shall be an act of bankruptcy; and s. 7, provides, "that no commission under [ *513 which the adjudication shall be grounded on the act of bankruptcy, being the filing of such declaration, shall be deemed invalid by reason of such declaration