of the Company: and such court of assistants, from time to time, when and as vacancies (or what they are pleased to call vacancies) occur in such court of assistants, fill up such vacancy by electing or calling up at their sole pleasure or discretion such other members of the commonalty of the Company as they deem proper to be members of the said court of assistants; and the persons being so elected or called up thereupon become (or assume to become) members of such court of assistants for life. That there are, as deponent believed, between 100 and 200 persons who constitute the commonalty of the Company, who have duly acquired their rights, as such, either by birth or servitude; all of whom are entitled to exercise their elective functions in the choice of the wardens for the time being of the Company equally with those who are members of the pretended court of assistants: and that such of the members of the commonalty as are not members of the court of assistants are and have been unduly excluded from exercising their elective privileges as members of the Company.

That the election of prime and other wardens usually took place in September in every year; and that deponent, in June, 1852, gave notice to the attorneys of the Company, requiring that the master and wardens should be elected by the commonalty according to the [*382 *constitution of the Company. That, notwithstanding this was well known to the court of assistants, that court had, in September, 1852, chosen the persons named in the rule as prime warden or master and wardens; and such persons had assumed to act as master and wardens, and, together with the persons who assumed to constitute the court of assistants, to manage the affairs of the Company. That the persons assuming to act as master, wardens, and members of the court of assistants acted as trustees of large estates real and personal, enjoying considerable patronage and deriving pecuniary advantages. That the members of the court of assistants allowed certain officers to be elected by the commonalty.

In answer, an affidavit was made by the clerk and solicitor of the Company jointly. They deposed that the earliest charter of which the Company possessed any authentic record was the charter of R. 2, mentioned in Newnham's affidavit; and that the words of the charter, in respect to the part of the grant mentioned in that affidavit, were: "quòd ipsi de cætero unam communitatem perpetuam de seipsis habeant, et quòd eadem communitas singulis annis eligere possint et facere quatuor custodes de hominibus dictarum communitatis et mysteræ, ad supervidendam, regendam et gubernandam mysteram et communitatem prædictas, ac omnes homines, personas et negotia earundem in perpetuum." That several other charters were granted to the Company as stated by Newnham in his affidavit. The affidavit then referred to stat. 1 Ed. 4, c. 1 (A.D. 1461), by which it was enacted (sect. 3) that all liberties, privileges, franchises, &c., corporations, &c., and all manner of grants, &c., which VOL. III.-32

were granted in the times of Henry 4, Henry 5, and Henry 6, to (amongst others) the Wardens of the commonalty of the Mystery *383] of Mercers of the City of London should be in like force and virtue as if they had been granted by any King or Kings lawfully reigning, as if they had been granted in the times of Edward 3 and Richard 2, late lawful Kings of England. That deponents verily believed that many of the books and documents of the Company were destroyed by the great fire in London in 1666; but that the Company have still several ancient books and documents of the Company belonging to them; and from such ancient books it appears, and deponents verily believed, that, prior to the said charter of R. 2, and as far back as 1347, and from thence continually down to the time of the aforesaid charter of R. 2, the Company of Mercers of the City of London was governed by wardens, four in number, annually elected; and that each of those four wardens, on leaving office, at the end of the year, nominated his successor. (Entries were set out.) That deponents believed that the Company of Mercers was and has been a guild or corporation by prescription from time immemorial. That it appears from the ancient books of the Company, and deponents verily believed, that, after the charter of R. 2 was granted in 1394, as aforesaid, the custom and practice of the outgoing wardens to appoint their successors continued unchanged and without interruption, as it had previously existed as before mentioned, until 1463; and that the entire business of the Company was managed by such wardens. That it further appears from the books of the Company, and deponents verily believed, that, from 1463, there has existed a body of the liverymen of the Company called and known as The Court of Assistants of the *Company; and that the number of *384] such court of assistants, between the years 1527 and 1684, when Charles 2 granted the Company their new charter, always exceeded twelve, and varied from nineteen to twenty-four persons, besides the four wardens and, from that period to the present time, such court of assistants has varied from twenty-one to thirty-two persons, being liverymen of the Company.

The surrender of the Company to the Crown, dated 3d October, 1684, antecedent to the grant of the charter of C. 2 before mentioned, was set out.

That deponents verily believed that such court of assistants was originally established on account of the trouble and inconvenience, in early times, of summoning and assembling the whole body of the commonalty of the Company. That, not only have the court of assistants elected the wardens of the Company for many years in modern times, as stated in Newnham's affidavit, but that, during the whole time that such court of assistants has existed as aforesaid, the wardens of the Company have invariably from time to time been elected and chosen, and still are elected and chosen, at such court of assistants of the Com

[*385

pany; as appears by the records and documents of said Company. That, as far as deponents could ascertain from the books of the Company, the practice has been, ever since the existence of the court of assistants and from the year 1463 to the present time, and still is, for the warden and court of assistants to elect persons from the livery of the Company to fill up vacancies in such court of assistants as deaths And that the members of the court of assistants are invariably liverymen of the Company, and members of the commonalty *at large of the Company; and that they continue liverymen of the Company, and members of the body of the commonalty at large, after their election to be members of the court of assistants, and retain all the rights and privileges of liverymen of the Company. That, although deponents had carefully searched and examined the records and documents of the Company from the earliest times of which the Company possess any records or books, they cannot discover that at any time since the first existence of the Company has there been any instance of the election of any warden or wardens by the body of the commonalty at large of the Company. That they believed that the election of the wardens of the Company, from the earliest times, was, and always has been, either by the wardens for the time being of the Company down to 1463, or by the court of assistants of the Company from the year 1463 down to the present time.

That the persons named in the rule were, in September, 1853, elected wardens by the court of assistants, in accordance with the usual mode of election; and that each was, at the time of his election, a freeman and liveryman of the Company, and a member of the commonalty.

That deponents denied that they had assumed or exercised the exclusive right to choose or appoint annually from amongst themselves the prime warden or master and wardens of the Company; although, of late years, the fact has been that the prime warden or master and wardens have, at the time of their election, been members of the court of assistants. That they had, at the time of their election, invariably been freemen of the Company and members of *the body of the [*386 commonalty at large. That there are instances, in the records of the Company, in which they have not been members of the court of assistants at the time of their election, or previously thereto. But that the practice had been to elect men who were members of the court of assistants, as having more knowledge and experience of the affairs of the Company than others not upon the court. That the prime warden or master and wardens and court of assistants had always, from the time of their first existence, had almost the entire management of the affairs of the Company.

Sir A. J. E. Cockburn, Attorney-General, Bramwell and Bovill, now showed cause.—The affidavits in answer show a good title. A by-law limiting the number of electors, provided no integral part of the cor

poration were excluded, would be good; The Case of Corporations, 4 Rep. 77 b, Rex v. Ashwell, 12 East, 22, Rex v. Westwood, 7 Bing. 1 (E. C. L. R. vol. 20). (a) [Lord CAMPBELL, C. J.-Questions of this kind were more frequently before the Courts, some years ago; we then used to think this quite trite law.] Next, the existence of such legal bylaw may be presumed from usage; and the law may be pleaded as not extant in writing; Rex v. Head, 4 Burr. 2515, Rex v. Ashwell, 12 East, 22, Perkin v. Master, Warden, &c., of The Company of Cutlers in Hallamshire, in the County of York, 21 MS. Serjt. Hill, p. 65.(b) And further, the words of the charter itself are not express against this mode of election, and may therefore be explained by usage; Gape v. Hanley, (c) Rex *v. The Mayor and Citizens of Chester, 1 M. & *387] S. 101. The case of Rex v. Attwood, 4 B. & Ad. 481 (E. C. L.

R. vol. 24), is exactly in point. The relator might here, by inquiry, have learned that the usage was as stated in the affidavits in answer; and the rule should therefore be discharged with costs; for, if these facts had been before the learned Judge when the rule was applied for, he would have refused the application.

Cleasby, contrà. It is true that a good by-law may be presumed from usage; and the usage here is sufficiently shown if the by-law be good. But the relator contends that such a by-law as would establish this mode of election would be bad, as constituting a self-electing body and infringing the original constitution of the Company. This question is not decided by Rex v. Attwood. It is true that the same objection might have been taken there; but it was not noticed. The objection that the election was from a restricted number was suggested here by the Report of the Municipal Commissioners ; (d) but that is certainly answered in point of fact, as in Rex v. Attwood. [Lord CAMPBELL, C. J.-That objection would have been fatal. But was not the objection on which you now rely one of the grounds in Rex v. Attwood?] It is there mentioned in the second ground: but it was scarcely noticed in argument: probably the affidavits did not raise the point, as it is not distinctly noticed in the judgment. The body of electors cannot be limited by by-law, to a body not representing every integral part of the corporation. [Lord CAMPBELL, C. J.-All the members of the court of assistants here must have been members of the *commonalty.] *388] That would not make them representatives of the commonalty if they themselves select the members of the commonalty who are to constitute their body. The importance of the representative principle is admitted by Littledale, J., in Rex v. Westwood, 7 Bing. 64 (E. C. L. R. vol. 20), 4 B. & C. 805 (E. C. L. R. vol. 10), though he held the par

(a) In Dom. Proc., affirming the judgment of K. B. in Rex v. Westwood, 4 B. & C. 781 (E. C. L. R. vol. 10).

(b) Cited in 2 Selw. N. P. 1162, 10ht ed.

(c) Note (a) to Blankley v. Winstanley, 3 T. R. 288.

(d) Second Report, 1837, London Companies, 1.

ticular by-law then under consideration good; and by Holroyd, J., in the same case, (a) where he explains the decisions in favour of the elections in Rex v. Ashwell, 12 East, 22, and Rex v. Bird, 13 East, 367, on the ground that the exercise of the power of election was narrowed "to a part of the burgesses themselves," "and to certain other burgesses elected by the body at large." And the general principle, that by-laws cannot be made contrary to the constitution of the corporation, was affirmed in Rex v. Ginever, 6 T. R. 732, where a by-law nearly two hundred years old was held bad on that objection. It is to be observed that in Rex v. Attwood, 4 B. & Ad. 481 (E. C. L. R. vol. 24), the charter of R. 2 confirmed the customs of the guild, a circumstance upon which Taunton, J., relies: but here the supposed by-law, or usage, is later than the governing charter, and cannot control its generality.

Lord CAMPBELL, C. J.-I think that, if the facts now disclosed had been before my Brother Crompton when the rule was moved for, he would not have granted the rule. There is no ground whatever for questioning the validity of the election. Here is an usage of nearly four hundred years: if that can have a lawful origin, we ought to presume one. Now such an usage would be justified by a by-law limiting the electors as they are here *limited: such a supposed by-law [*389 has been held good again and again. The case is exactly like Rex v. Attwood, where this Court refused to interfere. We should not be acting rightly if we disturbed an election so made. As to there being a self-election, these officers are not self-elected. It may be right that the election should be in the general body: but that question is for the Legislature. It is supposed that the corporation of London is to be reformed: the Legislature may then take the point into consideration.(b)

COLERIDGE, J.-We must discharge this rule, upon the invariable principle that, when we find a very ancient usage, we are to presume anything which will support it. If we were to listen to ingenious legal objections or astute remarks, or enter into minute inquiries into evidence, the general result would be that, the older an usage was, the less should we be able to support it: and, instead of the antiquity being a protection, an old usage would be more difficult to defend than a modern

one.

Here we have an admitted uninterrupted usage from 1463. It was at first suggested that it could be traced back only to a later era; but from the affidavits in answer we find that it has prevailed so long. We may fairly infer the existence of a by-law limiting the power of election to this select body: and I do not at all agree that the selfelection destroys the representative character.

(a) 4 B. & C. 829 (E. C. L. R. vol. 10).

(b) The Report of the Commissioners appointed to inquire into the existing state of the Corporation of the City of London, &c., has been presented to both Houses of Parliament, and printed, A. D. 1854. The Commissioners abstain from noticing the Companies, as not being con. stituent portions of the Corporation; p. x.

Y