be entitled to call upon Read for the difference; and if they are so entitled to call upon Read for the difference, he is entitled to have that fund in his possession to answer the call. Whether the composition, therefore, were fair or not, appears to me to be immaterial as between these parties, though it may be otherwise between the bill holders and Read. HOLROYD, J. It appears by the award that this composition was made by the defendant, the acceptor of the bills, in order to relieve himself from his *676] responsibility; and it appears to have been made by the creditors for his benefit, and not for the benefit of the drawer of the bills. But although that be so, and although the bankrupt's estate has received benefit to the full extent of those bills, yet, inasmuch as the defendant did not actually pay to the amount of the monies in his hands, unless the transaction can be considered as a payment of the whole, and as a gift to him by the holders of the difference between what was actually paid and the amount of the bills, I think there would be great difficulty in supporting the proposition that the defendant is entitled to set off the full amount of the bills. I think, however, that the creditors, by stipulating for so much in the pound, or by taking as a composition a certain sum in lieu of the whole, and giving up the bills to the acceptor, gave the same legal effect to the transaction, as if there had been a payment of the whole to the creditors, and then a gift by the latter of the difference. It amounted, in point of law, to full payment of the bills, and would have given the defendant a right of action against Harrison, if the amount of the bills had exceeded the amount of the balance in his hands belonging to the bankrupt. It is true, that the acceptor of a bill, when he has paid it, supposing he had or had not funds in his hands, can only recover from the drawer of the bill so much money as was paid to his use. But, taking this transaction to have been in law a payment of the whole amount of the bills, and a gift to the acceptor of the difference, then the latter was entitled to charge the drawer with the whole. Rule absolute for entering a nonsuit. *677] *The KING v. The Mayor, &c. of WEST LOOE. Where an inhabitant of a borough applied for a mandamus to the mayor and steward of the borough, to enrol and swear him at the court leet of the borough, as a resiant and burgess, but did not make out an inchoate right in every inhabitant to be a burgess, or that any such connexion existed between the corporation and the court leet, as would make swearing and enrolment at the latter the means of perfecting such right; the court refused the writ. IN Michaelmas term, the Attorney General obtained a rule calling upon the mayor and steward of the borough of West Looe, to show cause why a writ of mandamus should not issue, directed to them or other proper officer in that behalf, commanding them, at the next court leet to be holden for the said borough, to enrol and swear R. Reath as a resiant and burgess of the said borough. The affidavits upon which the rule was obtained alleged that R. Reath is an inhabitant householder in the borough, and had applied at the court leet to be sworn and enrolled as a resiant and burgess, which application was rejected; they then set out a charter granted to the borough by Ed. 2, reciting and confirming a charter, whereby Richard Earl of Poictou and Cornwall, granted to Odo de Treverbyn "that his borough of Portbyan, otherwise West Looe, should be a free borough, and that the burgesses of the same borough should be free and quit of all customs. Also, if any one should reside for a year and a day in the same borough without just claim, he should, according to the law of other free burgesses, be quit of all neifty and servitude." Queen Elizabeth, in the sixteenth year of her reign, granted another charter to the borough, whereby (after reciting that Portbyan, otherwise West Looe, was an ancient town, and that the burgesses and inhabitants had 66 immemorially enjoyed several franchises, *as well by prescription as [*678 by charters theretofore granted to the tenants and inhabitants of the town, and that the town was brought to great decay by reason of the pov erty of the inhabitants, and that divers of the inhabitants had petitioned her majesty to make the same inhabitants a body corporate,) she granted thas the said borough should thenceforth be a free borough corporate of one mayo and burgesses, being inhabitants of the town aforesaid." The charter then provided that there should be twelve capital burgesses, who were to be the common council, and to make bye-laws, &c.; and further, that in the event of the death of any capital burgess, a new one should be elected, within eight days, by the mayor and capital burgesses. The charter further gave them a court leet to be holden twice a year, at Easter and Michaelmas. The affidavits then alleged that there are no books of record of the borough in existence of an earlier date than 1607, but that there are books in regular succession from 1607 to the present time, except from 1623 to 1641, and that those books contain entries of the proceedings of the several successive borough and leet courts, the elections and swearings of the mayors, and elections, swearings, and dismissals of capital burgesses, &c., &c.; and the swearing the freemen, upon their entry on the resiant rolls, the lists of jurors, two or three constitutions or bye-laws, and all the other corporate affairs. That in these books there are lists (generally annual lists) of the persons who formed the corporation; that these lists, whenever they appear, form part of the proceedings of the leet or law courts, and are thus placed in the books: From 1607 to 1624, free tenants, residents, capital burgesses. *1641. Free tenants, capital burgesses, resiants. 1645. Free tenants, capital burgesses, sensores. 1649. Capital burgesses, free tenants, resiants. 1651 to 1660. Capital burgesses, free tenants, freemen. 1660 to 1672. Capital burgesses, free tenants, resiants. 1672. Capital burgesses, free tenants, conventionary tenants. [*679 1675 to 1678. Capital burgesses, free tenants, conventionary tenants or resiants. 1678. Capital burgesses, free tenants, conventionary tenants, vel resiants tenentes. The line through resiants and the word "tenentes" appearing to be written in a different ink, and at a subsequent period. 1679. Capital burgesses, free tenants, free burgesses. And thenceforth the lists thus continue: It was further alleged, that by the parish registers and corporation records it appears that the persons whose names are contained in the said several lists named residents, resiants, sensores, freemen, and conventionary tenants, vel resiants, were all inhabitants of the borough previous to 1676. That at the court leet in October, 1676, the names of certain persons, not inhabitants of the borough, were added to the bottom of the resiant list, with the words, "admitted, Jurat. liber." affixed; such list being there styled the list of "convent. tenentes vel resiants." That no other mention whatever was made in the records of those nonresident persons than the mere entry of their names on the resiant roll, although thenceforth they exercised the rights and privileges of freemen or burgesses, together with the other resiants, by signing subsequent returns of members of Parliament. That in May, 1679, all the persons who were named in the last list of resi- ["680 ants are found in the same successive order on a list then headed or styled "Free Burgesses," which list stands in the said book in the place where the resiant list always theretofore stood; the term "free burgesses" being then applied to the same persons, instead of "resiants." The affidavits then stated, that many persons whose names appeared on the resiant list joined in the election of mayors, and sometimes of members of Parliament; and that no one ever took a part in such proceedings until after his name appeared in that list; and that there did not appear to be any other mode of making free burgesses except putting them on the resiant list. The affidavits in answer showed that, as far as living memory extends, the usage had been for the mayor and capital burgesses to assemble on certain days, and elect free burgesses; and they alleged that there was no tradition in the borough of any other mode of making free burgesses. The ancient books of the corporation did not contain any entries, excepting those already mentioned, of elections either of capital burgesses or free burgesses. The affidavits also showed that from 1714, down to the present time, the members of Parliament for the borough, had always been elected by the mayor and capital burgesses. Adam and Coleridge, showed cause. It must be contended, in support of this application, that all inhabitants of the borough of West Looe, are ipso facto corporators upon being presented and sworn at the court leet. To this there are two answers; first, the inhabitants of a town cannot be in *681] corporated; and, secondly, the being sworn at a court leet cannot effect a corporate office. But even if those points are considered disputable, still the affidavits do not show that the usage of the borough entitles the applicant to be presented and sworn. By the charter of queen Elizabeth, it is granted that the mayor and burgesses shall be a body corporate; it did not incorporate the inhabitants. But even supposing it to have incorporated the inhabitants, when the king incorporates the inhabitants of a town he does not give to any person coming to that town, power to become a corporator, he specially appoints the first corporators, but the body must be continued by some mode pointed out either in the charter, or in a bye-law, the power to make which is incident to every corporation, Bro. Abr. Corp. pl. 65. Where the party has an incohate right by birth or service, the court will grant a mandamus to compel the perfection of that right; but here the applicant has no such right. Nor does it appear how the court leet can affect his rights. It will probably be urged in support of the rule that all persons upon being put on the resiant list, exercised the rights of corporators; but the affidavits do not warrant any such conclusion; and unless that can be established, the allegations in the affidavits that persons mentioned in the resiant lists did such and such things, are of no value whatever: for although inhabitancy is certainly a part of the corporate character, it is not the whole of it. Besides, it appears that the court leet and court baron were holden together, and whether the persons named in those lists attended the one court or the other, or for what purpose they attended, does not appear. It is sworn, however, that no entry of any election of free burgesses can be found in the corporation #682] books; but neither do they contain any entry of the election of capital burgesses; and as there is no doubt that the latter elections took place, the observation is of no value. If usage be relied on, the usage as to the election of members of Parliament, is extremely clear, for it is sworn that from 1714, down to the present time, those elections have always been made by the mayor and capital burgesses. The Attorney Gene al, and Merewether, contra. That usage is of no avail, for part of the usage was, that nonresidents should vote, and that usage has been declared bad by a committee of the House of Commons, the West Looe case, p. 224. The real question is, who were burgesses by prescription within this borough, for they are mentioned in the charter of queen Elizabeth. but no mode of creating them is pointed out. By the other charters, the inhabitants were incorporated, and the only question is, who are the inhabitants in contemplation of law. Now, no one is a legal inhabitant but a freeman, or liber homo, a householder sworn at the leet; until he is sworn, he is not entitled to the privileges of an inhabitant, not being a legalis homo, and upon becoming a legalis homo, he would, under an incorporation of inhabitants, be a member of the corporation. Now, the affidavits show from the early usage, that the inhabitants were the persons incorporated, for by the lists there set out, and which were extracted from the books of the corporation, it appears, that from 1607 to 1624, that body consisted of free tenants, residents, and capital burgesses, and until the year 1678, the resiants under various [*683 denominations continued to form one list of corporators. In 1679, free burgesses were substituted for resiants, and the lists have been so made out ever since. As soon as persons were sworn and enrolled on the resiant list, they appear to have been parties to corporate proceedings, and never to have been permitted to be so until sworn and enrolled. And this is corroborated by that which took place in 1676, when nonresidents were introduced into the corporation; for that was effected by getting their names inserted on the list of resiants. As this is an application with reference to a public right, the applicant is entitled to the writ as a matter of right; and it is the practice in this court, if there is a doubt as to the evidence of the facts alleged in the affidavits, to make the rule absolute, in order that the evidence may be submitted to a jury; so also, if the law resulting from those facts, or from the charters at various times granted to this borough be doubtful, the applicant ought to have an opportunity of raising that question on the record. ABBOTT, C. J. I am of opinion that we ought not to grant the writ prayed for in this case. We are desired to grant a writ of mandamus directed to the mayor and steward of the borough of West Looe, or other proper officer in that behalf, commanding them at the next court leet to be holden for the borough, to enrol and swear Robert Reath, as a resiant or burgess of the said borough. If it had appeared on the affidavits before us, that a resiant when enrolled as such was, in that capacity and without reference to any other character, entitled to vote at the election of members of Parliament, I should have thought that we were bound to grant the writ. But it appears that a [*684 committee of the House of Commons, which is competent to give the law to us upon this point, has decided the right of voting to be in members of the corporation being inhabitants of the town, West Looe case, p. 224. There is not, therefore, any ground for a writ commanding that R. Reath, shall be enrolled a resiant. Has he then shown any right to be enrolled a burgess or member of the corporation? It has been contended that, by the usage and charters, every householder resiant has a right to be enrolled at the court leet as a resiant and corporator. It is said that inhabitancy confers the right, but at the same time it is urged, that the right is confined to householders; if inhabitancy confers the right, what is there so to limit it? This charter is in language very similar to many others. Whether such charters were wisely granted, it is not any part of our duty, nor is it within our power to decide. Our duty is to interpret such charters according to the decisions of our predecessors. An inchoate right to become a member of a corporation may be derived in various well known ways, as by birth, service, or marriage, and then this court will order that right to be perfected. But an inchoate right, resting solely upon inhabitancy, or upon that and householding, is something perfectly novel. This charter certainly confers no such right. Let us then advert to the usage; that is very obscure, and there appears to have been great negligence in the mode of keeping the books of the corporation; but there is no usage shown to have existed either before or after the charter of queen Elizabeth, which can warrant us in saying, that every inhabitant householder has a right to be sworn a corporator; and we ought to [*685 find a very clear and cogent usage before we interpose our authority for the purpose of establishing a constitution in this borough, unknown to the law and to our experience. It does appear that there are instances of the election of members of the corporation, and that power is incident to a body corporate, if no other mode of keeping up their succession is pointed out by their charter. Much of the argument which has been addressed to us was more properly applicable to the question, whether resiancy confers a right of voting for members of Parliament, and with the decision which has taken place on that point we cannot interfere. For these reasons, I think that this rule must be discharged. BAYLEY, J. I quite agree that if a serious doubt exists, either as to matter of fact or of law, the writ ought to be granted; but it is also the duty of the court to be satisfied of the existence of such a doubt before they interfere. The form of the rule obtained in this case is confused, and I am inclined to think that it was made so intentionally. It is for a mandamus to be addressed to persons filling different characters, and it leaves it doubtful in which character they are to act. The mayor and steward of the borough are also officers of the court leet, and it is left in doubt whether they are required to act as officers of that court or of the corporation. It is, therefore, necessary to consider the question as affecting them in each capacity. The application is to be sworn a resiant or burgess. Now, it is to be observed, that the leet does not appear to be a place where the business of the corporation is to be transacted. It may sometimes, for convenience, be transacted at the time and place of holding the leet, but the charter does not direct that any 686] of the corporation proceedings shall be carried on there, and in many cases that would be impossible. If any one of the capital burgesses dies, an election is to take place within eight days, whether a court is or is not holden during that period. The leet, therefore, does not appear to have any connexion with the corporation. If the party applying to us wishes to be sworn at the leet, for any purpose connected with that court, let him attend there, and ask to have the oath of allegiance administered to him. As yet, it does not appear that he has done so; and until he has made such a request, and been refused, we cannot grant a mandamus on that ground. But it is said, that he has certain rights under the charter granted to the corporation, and that there is a connexion between the persons enrolled at the lecet as resiants and the members of the corporation; and if this is to be considered as directed to the mayor and steward, as officers of the corporation, then it becomes necessary to consider whether he has any such rights. The charter of Queen Elizabeth recites a petition from divers of the queen's subjects, inhabitants of the borough (and whether this petition was from all or only some of the inhabitants, does not appear material,) that the inhabitants might be created a body politic and corporate; and then it grants, that the town of Portbyan, or West Looe, shall be a borough corporate of one mayor and burgesses, being inhabitants of the town. It does not any where state that all the inhabitants shall be burgesses, and it provides for the election of a mayor and capital burgesses; but says nothing about common burgesses. Suppose the legal effect of the charter to have been to make all the inhabitants burgesses, *687] (which, however, I take not to have been the case,) that would not make all persons burgesses who thereafter might become inhabitants of the borough. No mode of supplying new members to the corporation being pointed out, they would have an incidental power to make regulations for that purpose, and they might lawfully do it by election. For these reasons, I think that the applicant has not shown any such reasonable doubt in this case as would authorise us to grant the writ. The lists of persons attending the leet have been relied on, but it does not appear to me that they are in any way connected with the corporation. I should suppose that they were made for the purposes of the leet only. Then it is urged, that, according to this view, the corporation may elect nonresidents, which is contrary to the deci sion of the committee of the House of Commons; but they have no such |
