
    
      The State ex rel. Rice Dulin and others vs. Thomas Lehre and others, commissioners to receive subscriptions to the Capital Stock of The People's Bank. The State ex rel. Rice Dulin and others vs. Edwin P. Starr and others, President and Directors of The People's Bank.
    
    Under a proper construction of the Act of 1852, (12 Stat. 212,) the eight new Banks thereby incorporated have, subject to the additional regulations and restrictions imposed by the said Act, all the corporate powers and privileges belonging not only to the Planters and Mechanics’ Bank, but also to the Union Bank and the Commercial Bank of Columbia, under their original charters.
    The provision in the 9th section of said Act, that “ it shall not be lawful for any person to subscribe for shares in the nanmof other persons,” was not intended to exclude a bona, fide, subscription for stock by an attorney for and in the name of his principal; but to exclude subscriptions by one for his own benefit, in the names of others.
    The Commissioners, appointed under the provisions of the Act, to take subscriptions, had the power to require one offering to subscribe for stock in the name of another, to produce satisfactory evidence, other than a mere power of attorney, that the subscription was intended, bona Jtde} for the benefit of the principal $ and if such evidence was not produced to reject the subscription.
    Before a mandamus to compel a party to perform a particular act or duty can be applied for, a demand upon the party to perform the act or duty must be made.
    An objection, however, for want of a demand comes too late, after the merits of the case have been discussed.
    Under the aforesaid Act of 1852, the Commissioners appointed to take subscriptions, had no power, in case of over-subscription, to apportion the stock among the subscribers — that belonged to the corporation. At any rate, the Commissioners had no such power after the subscribers had become a body corporate by meeting under the notice of the Comptroller General.
    If the return to a mandamus sipoteris, shows that it is impossible to perform the act required, a peremptory mandamus will not be granted.
    
      Quo warranto will not lie against one claiming office under a supposed corporation, if no such corporation exists.
    Though quo warranto may issue against one claiming office under a corporation, who was not elected by a majority of legal votes, yet the fact must be made to appear, that, deducting the illegal votes he received, he was not elected.
    A corporator, who, knowing of the objection to tho legality of a certain class of votes, nevertheless attends a meeting of the corporation at which the votes are decided to be legal, acquiesces in the decision, and canvasses and votes at the election, will not be permitted afterwards to question the titles of the officers elected, on the ground tha^ that class of votes were illegal.
    An information in the nature of a quo warranto is not allowed of course, but only in the exercise of a sound discretion.
    
      
      Before Frost, J., at Charleston, Fall Term, 1853.
    The Legislature, at its session in 1852, passed an Act() providing as well for the re-charter of certain Banks then in existence, as for the incorporation of several new Banks. By the first six sections of the Act, the charter of the Planters and Mechanics’ Bank was renewed for the term of twenty-one years, and certain regulations and restrictions enacted and applied to this Bank. By the seventh section, the charters of the Union Bank, and Commercial Bank of Columbia, were renewed for the same time, with the same privileges, and “ subject to the same regulations and restrictions, as are herein provided in relation to the said Planters and Mechanics’ Bank.” Provision was then made, by the eighth section, for the incorporation of eight new Banks, under different names, and with different capitals, respectively; among which was one to be called the People’s Bank, with a capital of one million. The rest of the Act is in the following words : “which said Banks shall have and possess the same rights and privileges, and be subject to the same duties, liabilities, obligations, regulations, and restrictions herein provided for the said Planters and Mechanics’ Bank, and Union Bank, and Commercial Bank. The capital stock of each of the said eight Banks shall be divided into shares of twenty-five dollars each.”
    “ IX. The Comptroller General shall be authorized to appoint fit and proper persons as Commissioners, at Columbia and Charleston, or elsewhere, as he may decide, to open subscriptions, between the first day of April and the first day of July next, to the capital stock of the eight Banks respectively named in the foregoing section; and to require five dollars on each share from subscribers in specie, or notes of specie paying Banks of this State; and shall deposit the same in such Bank as a majority of the subscribers shall designate, for the use of the respective Banks, on the first meeting of the subscribers. That as soon as the subscription shall respectively be filled to the amount of the capital stock of each of the Banks respectively hereinbefore named, it shall be the duty of the Comptroller General to notify said subscribers to meet, who shall thereupon become a body corporate, with the same privileges and rights as the Stockholders of the Banks whose charters are hereby renewed, and make all by-laws not inconsistent with the laws of the land, to provide for the election of officers, the division of the capital stock as aforesaid, the payment of the subscriptions, and all arrangements to put into operation the charters hereby granted. Provided, that no one of the Banks hereby incorporated for the first time, shall issue any bill or note, or transact business, until satisfactory proof shall be given to the Comptroller General that one-half of the capital stock of each Bank has been paid in; one moiety thereof in gold or silver, and the other moiety in notes of specie-paying Banks. And •providedfurther, that in case of over-subscription to the stock of any of the foregoing Banks, the said subscription shall be reduced pro rata, but no subscription of five shares or under shall be reduced ; and it shall not be lawful for any person to subscribe for shares in the name of other persons.”
    Acting in pursuance of the provisions of this Act, the Comptroller General appointed the following six gentlemen to take subscriptions to the People’s Bank in Charleston, to wit: Thomas Lehre, W. J. Bennett, Joseph Prevost, Thomas N. Gadsden, E. P. Starr, and George S. Cameron. Previously to the opening of the books, some inquiry was suggested among the Commissioners, as to the meaning of that portion of the Act, which prohibited subscriptions by one person in the name of another; they submitted the matter to legal counsel, and the opinion given to them was, that according to a proper construction of the Act, subscriptions might be made by attorney, provided such subscriptions were really for the benefit of the principal. Books were then opened, after advertisement in the public journals, in which this provision of the Act was recited, by the above-named Commissioners in Charleston, for subscrip* tions; and so kept open, on the fourth, fifth, and sixth days of April, from 10 A. M. until 4 P. M.
    On the first day several persons came with lists of names, and offered to subscribe in lots of four and five shares for each of such names. The Commissioners inquired whether the subscriptions were really for the persons whose names were thus used, or for themselves; and upon their answering that they were for themselves, these subscriptions were rejected. To this inquiry, however, one person, on the second day, refused to answer, and insisted ihat he had a right to subscribe for any names that he might offer, and, after some hesitation, his subscription in the names offered was allowed, and after this no further inquiry or objection was made. The form in these cases was a short written or printed letter of attorney, authorizing the person for whose benefit it was made to subscribe for such number of shares, and to vote on and transfer them in the names of the undersigned, to which were appended long lists of names. The authority to vote and transfer the shares were sometimes on a separate paper, and sometimes incorporated with the power to subscribe; and in some instances, there was a separate power of attorney for each name. The Relators subscribed in their own names for the following number of shares — R. Dulin, two thousand shares; D. F. Fleming, ten shares ; Austin Cannady, twenty shares; Charles Witte, one hundred shares ; and Samuel McLaughlin, one hundred shares. After the books were closed, it appeared that the number of shares subscribed for, largely exceeded the number fixed by the Act — the shares subscribed amounting to sixty-three thousand and eighty-eight, whereas forty thousand was the number required to make up the capital. An apportionment was then made by the Commissioners, in which they allotted to the names annexed to the lists, and soused by the persons offering them, the full number of subscriptions which they would have been entitled to, had such subscriptions really been made on behalf of those whose names were annexed; thus allowing such subscribers four or five shares respectively, for each name in their lists. When this was known, a written objection and protest to the allowance of these fictitious subscriptions, and the advantage thereby gained in the apportionment, was made by Mr. R. Dulin, one of the>Relators, and presented to the Commissioners.() Soon after a meeting was held, on the 26th of April, of Shareholders to the Bank, at which the Commissioners presented their report, stating the number of shares subscribed, and the apportionment made by them; and also reporting the objection made by Mr. R. Dulin, and the protest which he had piesented to them. Upon the consideration of the report, Mr. Dulin opposed the admission of the fictitious subscriptions, as by it an undue advantage was allowed to those by whom they were made, not only in the amount of shares obtained by them, but also in the greater number of votes which they would thereby gain ; and he proposed that such subscriptions should be consolidated, and treated as the subscriptions of the pretended attorney, so that subscribers using the names of others should be in no better situation, as to the number of votes, than those subscribing in their own names, declaring his readiness to acquiesce in the conclusion of the majority. It was then moved, that so much of the report of the Commissioners as regarded the protest of Mr. Dulin should be laid upon the table, and the rest be adopted; this was carried out; Mr. Dulin’s proposition was never distinctly submitted to the meeting, but a vote taken, approving of the conduct of the Commissioners.()
    
      A motion was made, that the managers of election should require persons offering to vote, to take the oath provided for in the charter of the Planters and Mechanics’ Bank, to the effect, that the shares for which one offered to vote in his own right, really belonged to him; and that those on which he claimed to vote as proxy for another, really belonged to such other. This was also laid upon the table, and resolutions were adopted providing for the election of directors, the appointment of managers, and directing them to conduct the election in the manner pursued in the Farmers’ and Exchange Bank.
    Mr. Dulin, and the other Relators, received from the Commissioners the surplus remaining from the reduction of their subscriptions, and voted at the election afterwards held. The election was held on the second of May, the Monday after; and following the course which had been pursued in the election of the Farmers’ and Exchange Bank, the managers adopted the scale directed by the charter of the Planters and Mechanics’ Bank, which allows a larger proportion of votes to the shares held in small amounts. According to this, one vote was given to every four shares up to twenty, then the proportion is raised, so that between twenty and sixty the proportion is doubled, and between sixty and one hundred and twenty, one vote allowed for every twelve shares; between one hundred and twenty and two hundred, one vote for every sixteen shares; and above two hundred, one vote for every twenty shares; and no person is allowed more than sixty votes, whatever may be the number of shares held by him. Adopting this scale, the subscribers were allowed the number of votes which they claimed under it; and they were suffered to give the number of votes which would have belonged to the shares assigned to their lists of names, had those shares really belonged in such proportions to the persons whose names were used.
    Thus, T. N. Gadsden gave two hundred and seventy votes on behalf of the shares assigned to his lists, besides twenty-four votes for himself; W. G. Armstrong three hundred votes for the shares assigned to his lists; and various other persons a much larger number of votes than they would have been entitled to for any amount of stock which they might have held in their own names ; Mr. Dulin casting but sixty votes for eleven hundred and sixty-six shares assigned to him. At this election the following thirteen persons were elected directors, viz :
    Messrs. E. P. Starr, George W. Brown, O. B. Heriot, R. F. Reynolds, C. L. Burckmyer, W. H. Houston, J. W. Scruggs, J. F. Green, E. W. Edgerton, Thomas N. Gadsden, B. D. Boyd, L. T. Potter, and A. McKenzie ; and on the next day they proceeded to elect E. P. Starr their President.
    On the day after the election for directors, notice was given to the Commissioners, on behalf of the present Relators, not to pay over to the above persons, claiming to be President and Directors, the funds in their hands paid on the subscriptions to the stock, as legal proceedings were about to be taken to contest the matter : and on the 6th of May, notice to those declared elected Directors, that a motion would be made on the 14th, before a Judge at Chambers, for a rule to show cause why informations in the nature of a quo warranto should not be exhibited against them; and also to the Commissioners, that a motion would be made at the same time for a rule to show cause why a mandamus should not issue, to compel them to re-apportion the stock m conformity with the Act. Accordingly, both matters were taken up before his Honor, Mr. J. O’Neall, at Chambers, in Columbia, on Saturday, 14th May. The motion was supported, on behalf of the Relators, by affidavits of themselves and others ; and resisted by the President and Directors elect, and some of the Commissioners, by counter affidavits. The assent of the Attorney General to the use of his name was also shown.
    After hearing the affidavits and argument of counsel, his Honor ordered rules to issue, and gave the following opinion :
    O’Neall, J. In this case a great deal of matter has been presented for my consideration ; and rules are moved for, first, against the Commissioners, to show cause why a mandamus should not issue, requiring them to re-apportion the stock; and, second, against the President and Directors recently elected, to show cause why an information, in the nature of a quo war-ranto, should not be issued against them, as being illegally elected.
    The case has been very fully argued, and I shall very briefly state my conclusions.
    Under the Act of December last, the People’s Bank, with seven other new Banks, was incorporated, in connection with the renewal of the charters of the Planters and Mechanics’ Bank, the Union Bank, and the Commercial Bank. As might be expected, in such a jumble, there is great difficulty in construction. Blind, however, as the law maybe, I am compelled to endeavor to come to some conclusion, as nearly right as I can.
    The first inquiry is, whether the subscriptions of five shares, under powers of attorney, are in violation of the law 1 The Act, in the last clause of the 9th section, (Acts of 1852, 214,) declares, “It shall not be lawful for any person to subscribe for shares in the name of other persons.” A literal reading of those words will exclude any subscriptions in the name of another person, whether by a bona fide power of attorney or not. This was clearly not intended. He who bona fide subscribed under a power of attorney for another person, was not acting in violation of the law. This, as I understand from Colonel Lehre’s affidavit, was the rule adopted, and pursued for a time. Subsequently the question was raised, whether the Commissioners had the right to make the inquiry as to the bona fides; and it was ruled they had not, and then the flood was upon them. For many persons subscribed for five shares in the names of other persons, under powers of attorney. For example, G. W. King, on an affidavit before me, avows that he subscribed in the names of eighty-five persons, for five shares each, amounting to four hundred and twenty-five shares; that he paid the advance on the subscription, and that the persons in whose names he subscribed, had no interest whatever in the stock so by him subscribed. So, too, it seems that H. W. Conner, Thomas N. Gadsden, W. G. Armstrong, and many others, subscribed in the names of third persons for five shares, under powers of attorney. One of the powers, under which Mr. Conner subscribed for thirty-eight persons, has been before me— and contains, in addition to the power to subscribe, the power to vote for each of the subscribers, to sell and transfer the stock, and to receive and receipt for any money to be refunded on the subscription.
    These facts make it plain to my mind, that the law has been violated. I entertain no doubt that the Commissioners had the right, and that it was their duty, to examine everyone presenting a power of attorney, touching the bona fides thereof; and to have dealt with every one refusing to answer, or avowing that it was for his own use, as they did with Kerrison, Caldwell, and others, in rejecting the subscriptions offered by them under powers of attorney — and I confess, that I deeply regret they did not so act. The great difficulty with me, has been to know how I was to reach and remedy this grievous error. That the charter by this violation of law may be forfeited, if the Legislature think proper to order a scire facias, is a consequence greatly to be feared.
    Can the present parties complaining make the question which they raise, and follow it up to the consummation which they desire, has been to me a cause of more perplexity than I usually encounter. That they have voted in the corporation, and received the excess of their subscriptions, is true. Ordinarily, this would be such a concession of a rightful corporation, that it could not be got over. Yet it seems, Mr. Dulin gave notice, that he would object to any allotment on shares subscribed, under powers of attorney, in the name of other persons, for the use of the persons so subscribing; and that he would institute legal proceedings to correct the same. There is no doubt, that in a subsequent meeting of the stockholders, he stated his willingness to abide by the decision of the majority. This, however, cannot bind him : nor do I know, that the other parties complaining are concluded from agitating the very vital question of subscriptions made contrary to law, and endeavoring to save the charter, by freeing it from such an objection. I have, therefore, after much reflection, come slowly to the conclusion, that I must entertain their complaint.
    It is next to be inquired, whether the Commissioners were bound, before apportioning the stock, to exclude the subscriptions contrary to law ? Then, again, arises a strange difficulty in the fact, that there is no provision in the Act of the last session, authorizing them to do anything about the apportionment of the stock. The literal reading of the Act is, that as soon as the subscription is filled, the Comptroller is to notify the subscribers to meet, and divide the capital stock into shares of $25 each ; and in case of over-subscription, the subscription shall be reduced fro rata, but no subscription of five shares or under shall be reduced. According to this, there would be no scale of voting; every share subscribed would be entitled to one vote. Indeed, it would be a sort of mass meeting, until the stock should be reduced, and divided, and even then each share would be entitled to one vote. This literal reading has been overcome only by construction. This charter for the People’s Bank declares it shall carry to the stockholders the “ privileges and rights” of the Banks whose charters have been renewed. The stockholders adopted the scale of voting given by the charter of the Planters’ Bank, and hence, I suppose, it may be considered by the law and their act, as their charter, where not altered by the Act of 1852. By the first section of the charter of that Bank, the power of apportioning the stock among the subscribers is given to the Commissioners to take subscriptions in Charleston, and hence, I suppose, it is given to the Commissioners here. Having come to this conclusion, I entertain no doubt that they ought to have excluded every share subscribed, under the powers of attorney, which have been drawn in question before me.
    How can the Commissioners now re-apportion the stock, they having refunded to most of the subscribers the excess 1 There is great difficulty here. It must, however, be overcome. I see no other way, than to exclude the illegal subscriptions, ascertain the increase upon the bona fide shares, and notify the stockholders entitled to pay back the money received.
    The next question is as to the election of the President and Directors. That it is bad, if my previous views are right, is plain. They have been elected by illegal votes, and by an illegal corporation. For until the stockholders are legally ascertained, all is wrong.
    The rules I am therefore bound to order; and it is therefore ordered, that a rule to show cause why a mandamus to re-apportion the stock of the People’s Bank should not be granted, do issue from the Court of Sessions for Charleston District, directed to Colonel Thomas Lehre, E. P. Starr, W. J. Bennett, J. Prevost, Thomas N. Gadsden, and G. S. Cameron, returnable to the next term : and it is further ordered, that a rule to show cause why an information in the nature of a writ of quo war-ranto should not be exhibited against Edwin P. Starr, G. W. Brown, O. B. Heriot, R. F. Reynolds, C. L. Burckmyer. W. H. Houston, J. W. Scruggs, J. F. Green, E. W. Edgerton, Thos. N. Gadsden, B. D. Boyd, L. T. Potter, and A. McKenzie, for exercising the offices respectively of President and Directors of the People’s Bank, do issue from the Court of Sessions of Charleston District, returnable to the next term.
    Upon the return to the rules before his Honor, Mr. J. Frost, at Fall Term, 1853, the same affidavits which had been submitted on the motions for rules, were again read. Ten of the Directors elect and the Commissioners made returns setting forth the same facts contained in the counter-affidavits submitted before his Honor, Mr. J. O’Neall. Three of the Directors, to wit: Messrs. Boyd, Potter and McKenzie, returned that since the decision at Chambers they had resigned, and had nothing further to do with the Bank.
    In the case against the Commissioners, on the motion for a mandamus, his Honor, Mr. J. Frost, pronounced judgment as follows:
    Frost, J. This case came up on a rule against Thomas Lehre and others, Commissioners appointed to receive subscriptions to the capital stock of the People’s Bank, “ to show cause why a mandamus should not issue, directing them to reapportion the stock of the People’s Bank, agreeably to the charter.”
    From the returns of the Respondents, it appears that the provisions of the charter, which directs “ that it shall not be lawful for any person to subscribe for shares in the name of other persons,” was brought to the attention of the Commissioners; and that, during the first day, inquiry was made of persons, who offered to subscribe in the names of other persons, whether the stock to be subscribed was in fact for the benefit of the persons in whose names the subscriptions were offered ; and, if they were not, the subscriptions were refused. Afterwards, however, on doubts arising with some of the Commissioners, whether they were empowered to make the inquiry, subscriptions to stock made by persons in the name of others, were received without question ; and many subscriptions for five shares were thus made. Subscriptions for five shares, or less, are, by the charter, not subject to reduction in case of an over-subscription to the capital of the Bank. It was therefore, to secure a large number of shares, that the device was used, of obtaining powers of attorney to subscribe five shares, from many individuals, for the benefit of the attorney who made the subscription. It appears, from the affidavits filed by the relators with the rule, that a large number of five-share subscriptions were made. under powers of attorney, procured by the several persons who are mentioned in the affidavits. These persons severally subscribed for a large number of shares; the number varying with the several individuals, from one hundred and fifty to four hundred shares, and they thus secured a subscription of five shares in the names of all those who had signed the powers of attorney. There is no direct evidence that these subscriptions, (with an inconsiderable exception,) are not for the benefit of the nominal subscribers; though the presumption to the contrary is almost irresistible. The capital stock of the Bank was divided into forty thousand shares. More than sixty thousand were subscribed, so that subscriptions of one hundred shares were, by the apportionment, reduced to fifty-eight. After the books were closed, the Commissioners made an apportionment of the stock among the subscribers, and allowed the five shares to each of the persons whose names had been subscribed under the powers of attorney before mentioned. The Commissioners were proceeding to refund to subscribers, the number of whose shares had been reduced, the surplus of their first payment on the whole number of shares subscribed. The Comptroller General having been notified that subscriptions, for the amount of the capital stock, had been received by the Commissioners, in pursuance of the charter, had summoned a meeting of the subscribers, to be convened on the 26th day of April, 1853. In this stage of the affair, R. Dulin presented to the Commissioners an mstrument of writing, in the nature of a protest, dated the 25th April, 1853, whereby he notifies the Commissioners, that he objects to the legality of the subscriptions, made under powers of attorney for five shares each,, on the ground that said subscriptions were not made for the benefit of the subscribers, but for other parties; and that he objects to any allotment of shares on those subscriptions, lie declares his intention to adopt such legal measures as may be necessary to enforce his objection ; and gives them notice not to pay over the moneys, which had been received by the Commissioners from subscribers, “ till the question has been decided by the proper authority, or until after the meeting of the stockholders to-morrow.” The Commissioners accordingly desisted. A very full meeting of the subscribers convened on the 26th April. A report from the Commissioners was presented to the meeting, showing a subscription, in Charleston and Columbia, of 63,088 shares, and the receipt of ¡$315,440, for the first instalment, which had been deposited to the credit of the Commissioners in various Banks. The report further states, that “ the excess of subscriptions was advertised to be paid to the stockholders, yesterday, the 25th instant; but a protest being lodged with the Commissioners by one of the subscribers, before the time for payment, we determined to decline the payment thereof, and to refer the matter to the stockholders, at their meeting this day, for their consideration.” They also submit with the report a “ book containing the list of the subscribers, the number of shares subscribed by each, the number of shares allotted, and the amount to be refunded.”
    It was resolved by the meeting, that so much of the report as relates to the protest should be laid upon the table; and that the report, in all other respects, be accepted and adopted by the meeting. It was further resolved that, on Monday next, an election should be held for President and Directors of the Bank; and that the managers of election should conduct it in the manner observed in the election for President and Directors of the Farmers’ and Exchange Bauk. An amendment, directing the managers to require the oaths to be taken, as required under the charter of the Planters and Mechanics’ Bank, was laid on the table. It was further “ resolved, that this meeting fully approve of the course taken by the Commissioners in relation to subscriptions, and their apportionment of the stock, and that the thanks of the meeting be tendered to them.” Committees were appointed to draft by-laws and to verify proxies, and it was resolved that, as soon as the President and Directors should be chosen, the Commissioners should pay to their order $200,000, the amount of the first payment of the capital of the Bank.
    Bice Dulin was present at the meeting, and took part in the discussion of the motion, to lay so much of the Commissioners’ report, as related to the protest, on the table; and in the course of his remarks said, that his object in presenting the protest was chiefly to set that right which he thought had been done wrong; and that, whatever a majority of the stockholders might agree upon and determine, he would acquiesce in : And then the motion to adopt the Commissioners’ report, leaving out all that related to the protest, was adopted with great unanimity. The relators did all, the next day, or very soon after, receive from the Commissioners their surplus payment, under the apportionment which had been made ; and they all voted at the election, which was held for the President and Directors of the Bank.
    By an Act passed by the Legislature in December, 1852, the charters of the Planters and Mechanics’ Bank, of the Union Bank, and of the Commercial Bank of Columbia, were renewed, and eight new Banks chartered, in a group, of which the People’s Bank was one. Respecting the new Banks, it was provided, “ that the said Banks shall have and possess the same rights and privileges, and be subject to the same liabilities, obligations, regulations and restrictions herein provided for the Planters and Mechanics’ Bank, the Union Bank, and the Commercial Bank of Columbia.” By preceding sections oí the Act, the Planters and Mechanics’ Bank was declared to be subject to the provisions of the Bank Act of 1840 ; that its capital stock should be subject to taxation by the State; that the stockholders, to a prescribed amount, should be individually liable for the debts of the corporation; and that the Bank should not pay out the bills of other Banks. In precisely the same terms which were used in reference to the People’s Bank, the Union and Commercial Banks had imposed on them the provisions which were enacted to regulate and restrain the Planters and Mechanics’ Bank. The ninth section of the Act authorized the Comptroller General to appoint Commissioners to open subscription books to the capital stock of the eight Banks, and to require five dollars to be paid by the subscribers on each share; and to 'deposit the amount in such Banks as the majority of the subscribers should designate, for the use of the respective Banks, on the first meeting of the stockholders.” As soon as the capital stock should be subscribed, the Comptroller General was required to notify the subscribers to meet, who shall thereupon become a body corporate, with the same privileges and rights as the stockholders of the Banks whose charters are hereby renewed ; and make all by-laws, provide for the election of officers, the division of the capital stock, the payment of subscriptions, and all arrangements to put into operation the charters hereby granted, “ provided that, in case of over-subscription to the stock of any of the foregoing Banks, the subscription shall be reduced pro rata; but no subscriptions of five shares or under shall be reduced ; and it shall not be lawful for any person to subscribe for shares in the name of other persons.”
    It is contended in support of the rule for the mandamus, that' all the subscriptions for five shares made by individuals for their own benefit, in the names of other persons, are illegal, and should be excluded from the subscription lists, in making an apportionment of the stock. On the other side it has been strenuously argued, that such subscriptions are legal. In the view which is taken of the case, it may be admitted that they are illegal; and I shall not discuss that question.
    The next step in the argument of the relators is,-that such subscriptions being illegal, the illegality must be redressed. That too is admitted; but the question is, is a mandamus the proper mode of proceeding to effect that redress? The law provides various modes of proceeding, adapted to the injury any illegal act may effect to the rights of private citizens, or of the State. The injury complained of by the relators, as resulting from the illegal subscriptions, is two-fold. First, that, if such illegal subscriptions receive an allotment of shares in the capital stock of the Bank, the number of shares for which the relators subscribed is reduced; and secondly, that the votes given on such shares, in the election for the President and Directors of the Bank, were illegal, and vitiated the election of certain persons to be President and Directors of the Bank, contrary to the votes and interests of the relators. The first wrong the relators propose to redress by mandamus, and the second by quo war-ranto.
    
    While it should be the desire, as it is the duty of the Court, to suppress all illegal practices, it would be an inconsiderate zeal that would accomplish that end, without regard to the means by which it may be effected. For every wrong the law has provided an appropriate remedy, which the due administration of the law requires should be used; and the. forms of proceeding, appropriate to every remedy or legal process, are necessary for the protection of the parties litigant in the subject of controversy. The remedy which the relators have chosen to pursue, is a writ of mandamus, and what they require by that writ is, that the Commissioners should be compelled to re-apportion the stock.
    The first objection of the defendants to the grant of that writ is, that the relators have not shown that this legal proceeding is necessary, by any evidence that the Commissioners have been required by the relators to make such re-apportionment, and that they have refused. In every form of action the plaintiff must prove that the wrong was committed, before the writ was sued out. In trover, a previous conversion must be proved. In as-sumpsit on a note, that the note was due before the action commenced ; and the plaintiff, in an action of trespass to try the title to a parcel of land, cannot maintain his suit, by proof of a legal title, acquired after it was commenced. So it is a rule of the law of mandamus that, before making application to the Court for the writ to command the performance of any particular act, a distinct demand must have been made by the prosecutor on the defendant, who must have refused to comply with such demand, either in direct terms, or by conduct, from which a refusal can be inferred ; it being due to the defendant to have the option of either doing or refusing to do that which is required of him, before an application shall be made to the Court for the purpose of compelling him. Tapping on Mandamus 282; Rex vs. Eastern Railway Co., 10 Ad. & El. 531; Rex vs. Brecknock, 3 Ad. & El. 217. No evidence of a demand and refusal has been relied on, except the protest of Dulin. But this only required the Commissioners not to repay the surplus subscriptions, until after the meeting to be held the next day. They complied with this requirement, and the acceptance of the relators of their surplus subscription, was certainly a waiver of the protest.
    But 1 do not intend to rest the decision on this technical ground.
    The objection to the grant of the mandamus, which is substantial and insuperable, is that it is asked to compel the Commissioners to re-apportion the stock, which, it is plain, they have no power to do. This want of power both negatives any previous default, and forbids any command to them to make it. A writ of mandamus supposes the required act to be possible, and to be obligatory when the writ issues. If the power to obey the command expires before the grant of the writ, it should not be granted. Regina vs London and North- Western Railway Comp., 6 Eng. Law and Equity Rep. 228. Even when the act required to be done, was in the power of the defendant, at the time when the first writ of mandamus (sipoteris) was granted, and by the expiration of time, the defendant had lost the power, his return of that fact was held to be sufficient cause to refuse a second or peremptory mandamus. Reg. vs. The Lancashire R. R. Co., 72 Eng. C. L. R. 872.
    The Act authorized the Commissioners “to open books and receive subscriptions of stock, and to require the payment of five dollars on each share subscribed, which they were directed to deposit in Bank for the use of the People’s Bank, on the first meeting of the stockholders.” When the subscribers met on the 26th April, under the call of the Comptroller-General, they “ thereupon became a body politic,” with power, among other things, “ to make division (or apportionment) of the capital stock.” There is not a word in the Act to confer this power on the Commissioners. They greatly misapprehended their authority, when, before the meeting, they made an apportionment, and were proceeding to refund the surplus subscriptions. Dulin understood the Act better than they did, and gave them a timely caution to stay their proceeding until after the meeting of the subscribers. The apportionment made by the Commissioners had no legal validity, and was, in effect, only a scheme of apportionment, until it was confirmed and adopted by the subscribers. As it is plain that the Commissioners had not at the time, nor now, any authority, under the charter of the People’s Bank, to apportion the stock, it can also be conclusively shown that, by no implication can that power be derived from the charters of the Planters and Mechanics’ Bank, or of either of the other two Banks, whose charters were renewed.
    The Commissioners cannot derive any power, under that provision of the charter, which declares that “ the said Banks shall have and possess the same privileges, and shall be subject to the same duties, liabilities, obligations, regulations and restrictions, herein provided for the Planters and Mechanics’ Bank, and Union and Commercial Banks.” This clause clearly refers to the restrictions, regulations, &c., to be subject to the Bank Act of 1840, to be liable to taxation, &c., which, by the first sections of the Act, were imposed on the Planters and Mechanics’ Bank, and, by the seventh section, were imposed on the Union and Commercial Banks, in precisely the same terms as in the eighth section, they are imposed on the eight new Banks. Besides, the privileges, &c., of the Planters and Mechanics’ Bank, are granted and imposed on the new Banks, and not on the Commissioners. Nor can the Commissioners derive any power from that clause of the ninth section, which declares that, on the first meeting of the subscribers, they shall be and “become a body corporate; and have the same privileges and rights as the Banks whose charters are' renewed.” Whatever rights and powers may be conferred by this clause, must be conferred on the body corporate or People’s Bank, for they are the same, which the renewed Banks possessed. The Commissioners, under this grant, would take banking privileges.
    It is needless to pursue this subject further. ’ The terms of the charter, which confer on the Commissioners the power to receive subscriptions, and on the corporation the power “to make a division of the capital stock as aforesaid,” are too clear and explicit to permit, by any implication, a transfer to the Commissioners of the power of the corporation to make an apportionment of the stock. The Commissioners have fulfilled their functions, and their agency, as commissioners, has ceased and determined. Their agency was employed to give existence to the Bank, by receiving the required subscription of the capital. The stock has been subscribed; the subscribers have held a meeting under the call of the Comptroller-General; and “thereupon they became a body corporate.”
    To the objection of the legal inability of the Commissioners, may be superadded the practical difficulties, if not the impossibility of their compliance with the required command. The subscription to the stock of this Bank was a subject of rife speculation from the day the books were closed. These five dollar subscriptions have been transferred to various persons. The Commissioners have no legal process by which they can compel the persons interested in these illegal subscriptions to appear before them; nor to admit nor deny anything, if they did appear ; nor to subpoena witnesses to testify ; nor to compel the persons, to whom additional stock may be assigned in a re-apportionment, after the illegal subscriptions are struck out of the list, to pay for the shares. They may not choose to take the new shares, especially when they can be bought at a large discount. How can the Commissioners recall the surplus subscriptions which have been paid by the order of the corporation ? If all the holders of illegal script should hold out against the Commissioners, they can do nothing.
    In refusing a mandamus to the relators, they are not left without redress for any injury they may have sustained by any illegal act. If they are wronged by the apportionment which has been made, the corporation, which made it, is liable to make reparation. It is capable, in law, of suing and being sued. The injury complained of is, that the relators have a legal right to shares, in the capital stock of the Bank, which have been refused to them, and granted illegally to others. This injury can be repaired in money. The relators will be indemnified, if the Bank is compelled to pay them the market value of the shares which they claim. Let the relators demand from the Bank a transfer to them of so many shares as, by a legal apportionment, they can show themselves entitled to. If the Bank should refuse, then the relators may have redress and compensation, by an action on the case, against the Bank for damages. Rex vs. Bank of England, Doug. 506 ; Shipley vs. The Mechanics' 
      
      Bank, 10 John’s. Rep. 484; The King vs. The Bank of England, 2 Barn. & Ald. 620.
    The rule against the Respondents is discharged.
    From this decision the relators appealed on the following grounds:
    1. That the right to a new election is incident to the right of setting aside the election under which the present Directors hold.
    2. That to effect a new election, the illegal votes should be excluded.
    3. That the illegal votes cannot be excluded without a scrutiny, and a return of the persons entitled to deliberate and vote as corporators, which return it is the proper duty of the Commissioners to make.
    4. That the Commissioners are in default by taking subscriptions which they were not authorized to take — by returning persons as entitled to be corporators, whose names should be excluded from their return — and that a mandamus is the proper and only remedy for causing justice to be done in the premises.
    On the rule against Edwin P. Starr, and others, to show cause why a quo warranto should notissue, his Honor, Mr. J. Frost, pronounced the following judgment:
    Frost, J. This is a rule against the respondents to show cause why one or more informations, in the nature of a writ of quo warranto, should not be exhibited against them for exercising, respectively, the offices of President and Directors of the People’s Bank, and the franchises of a corporation, under the style and title before stated.
    Three of the respondents return that they have resigned the office of Director, which is called in question by the rule.
    The other respondents unite in a return, in which they set forth the Act of incorporation; the appointment of Commissioners to receive subscriptions to the capital of the Bank ; the proceedings of the Commissioners, and of the meeting of the subscribers, convened on the call of the Comptroller-General, in substance, as they are stated in my opinion on the rule for a mandamus. They further set forth that the election was conducted pursuant to the directions made by the public meeting, and according to the scale of votes adopted by the meeting; no vote was challenged ; no one required the oath to be taken by any voter; and the result of the election in favor of the respondents, was reported to a meeting of the stockholders, without any protest or objection by any person. The respondents further show that the relators confirmed the apportionment of the stock, as such, by their acquiescence in the proceedings of the meeting, and by their acts in receiving re-payment of the .surplus shares, and by voting, themselves, according to the scale of votes made by that apportionment; and by consenting to the votes of others ; that the election for officers produced great excitement between the rival parties, in which the relators and respondents were adversary to each other; that the relators’ friends resorted to five share subscriptions, under powers of attorney, and voted on those shares, which the relators now allege to be illegal; and that it was not until after the relators had been defeated, that they discovered any objection to the proceedings which they now impeach. The return concludes with the presentment of various objections to the granting of the rule.
    The controlling facts of the case, in the view of it which is taken in the decision, are, that the relators were fully apprised of the alleged illegal five-share subscriptions, under powers of attorney, before or at the meeting of the subscribers, and before the allotment of shares was made by the meeting ; that they made no further objection to the report of the Commissioners, after it was adopted by the meeting; that they confirmed the apportionment made, by calling for repayment of the surplus on their subscribed shares ; and thereby relinquished all claim for the shares, on which the surplus payment was so received back; that they attended at the day and place of election ; and, with a knowledge of all the facts which they now impeach as illegal, they voted according to the scale adopted by the meeting, and permitted others to vote without challenge or objection.
    
      It is an established rule of corporation law, that a person is not to be permitted to impeach a title, conferred by an election, in which he was concerned. Every corporator must even be presumed to be cognizant of that which has recently taken place in a corporation of which he is a member, unless he shows the contrary. King vs. Slythe, 13 Eng. C. L. R., 158. In the King vs. Mortlock, 3 T. R. 300, the Court refused to grant an information, in the nature of a quo warranto, because the party applying for it had agreed not to enforce a bye-law, upon which he grounded his attempt to impeach the defendant’s title. Many other cases might be cited to the same effect. Rice Dulin expressly acquiesced in the act of the corporation by which the shares, which he now declares to be illegal, were sanctioned and allowed; and all the relators confirmed the corporate act when they received the surplus of the shares allotted to them, and when they voted according to the scale based on that allotment, and permitted all others to do likewise without challenge or objection. While there was a prospect of the success of their party, they consented to the alleged illegal votes. It cannot be doubted, if their party had succeeded, they would, without scruple, have shared the spoils of success; but having been defeated, they now pray the Court to interpose in their behalf, and condemn the proceedings in which they were participants, and equally guilty with the respondents.
    It has been strenuously urged that in the exercise of that discretion, by which the Court may be governed in granting or refusing a quo warranto, the rule should be discharged. I think the refusal of the application may be rested on the firm ground of law. This ground, however, is fortified by other serious objections to the rule. The relators have not shown how the election is void, because illegal votes have been received. It does not appear how many bad votes were given ; nor what number of such votes were given to the respondents; nor that, if such votes were rejected, the election might not' still be valid. The quo warranto must then be granted, not on any distinct allegation of facts, which, if true, would show the election to be void, but on a conjecture that the respondents were not legally elected.
    There are no persons claiming the offices of the respondents, and their term of office will expire before the investigation of the votes can be made, which are circumstances strongly opposed to the granting of a quo warranto. State vs. Schnierle, 5 Rich. 299. A very large amount paid in for the capital of the Bank has been impounded for seven months. Delay must be greatly more mischievous than to permit the respondents to hold their offices. Indeed much longer delay must result in a voluntary dissolution of the corporation. The granting of the quo warranto can have no good moral tendency. The relators and their party are charged with all the malpractices imputed by them to the respondents and their party. The only difference between them is, that one is the successful, and the other the defeated party. If the question were to be decided by my discretion, I should be strongly inclined against the application.
    The rule is discharged.
    From this decision the relators appealed on the grounds:
    1. That by the charter of the people’s Bank, the privilege of becoming a corporation is granted to the persons who may subscribe and pay the capital of the Bank; and in case of subscriptions for more than the capital, preference is given to subscriptions under six shares; and it is expressly forbidden for any person to subscribe in the name of another — that these regulations are conditions precedent, and no rights to any of the privi leges of the charter could be acquired in violation of those conditions.
    2. That it is abundantly proved that many thousand shares were taken by persons, who subscribed and paid their own money, in the name of other persons, for their own benefit by means of pretended powers of attorney.
    3. That the Commissioners appointed to carry the law into execution, returned the pretended principals as subscribers; and the pretended attorneys voted, in the names of such pretended principals, for Directors of the Bank; and that such votes were illegal, and ought not to have been received.
    4. That the Commissioners aforesaid apportioned the stock and reduced the interests or shares of the bona fide subscribers, to give place for the pretended attorneys of pretended principals, whereby the real subscribers were deprived of their right to the shares for which they had subscribed, an d prevented from voting according to the shares to which they were entitled ; and that by these means the election was vitiated, and ought to be set aside; and the concurrence of a majority of the subscribers, even if a majority of the real subscribers did concur in these acts, in violation of the charter, can confer no validity upon them.
    5. That the relators, to whose prejudice those acts were done, have a right to redress by the process of quo warranto ; and that their right was not waived or impaired by voting, nor by joining in the discussion which arose on the subject among the subscribers; nor by professing, for the purpose of obtaining a hearing, that, if they were overruled, they would acquiesce in the decision of the majority.
    
      Mitchell, for appellants,
    referred to the Act of 1852, and contended that the purpose of the Act was, first, to renew the charter of the Planters and Mechanics’ Bank, with certain restrictions and modifications, specified in the Act; next, to renew the charters of the Union and Commercial Banks, with the same modifications; and, lastly, to incorporate eight new Banks, of which the People’s Bank is one, and give to each of them the original charter of the Planters and Mechanics’ Bank as modified by the provisions of the Act of 1852. The charter of the Planters and Mechanics’ Bank is then the charter of each of the new Banks. The Act also provides for the appointment of Commissioners, fit and proper persons, to take subscriptions. For the People’s Bank, such Commissioners were duly appointed. What were their powers and what their duties 1 Were they mere clerks or pensmen to take down the names of such persons as offered to subscribe 1 Surely not. They were pub-lie functionaries, with power and authority to decide who were subscribers. The Act declares, “ that it shall not be lawful for any person to subscribe for shares in the name of other persons.” One, therefore, offering to subscribe for his own benefit in the name of another, could not be a subscriber. Is it not a necessary incident to the duty of the Commissioners that they had the power to reject such a subscription? And, if they had such power, had they not, also, the further power to inquire and ascertain — to satisfy themselves — whether the subscription offered was in good faith intended for the principal ? It is clear that they had such power; and it is equally as clear that the subscriptions in the names of others were illegal and void; and were permitted and made to the injury of the relators and all ether bona fide subscribers.
    Then as to the remedy; and, first, as to the quo warranto. The officers were elected by illegal votes — by persons who were not stockholders. By the charter, no one can cast more than sixty votes; and yet, by the evasion which was practised, many persons cast many votes beyond that number. One with two thousand shares could properly have cast but sixty votes, and yet, by evading the law, as was done, he might have cast four hundred. This shows how great was the violation, and that the election was void. In such case, quo warranto is the proper remedy. But it is said, that the relators are precluded by acts of acquiescence. The acts are that they received back their money, voted at the election &c. These are not enough. Participation to show acquiescence must be in some illegal, some guilty act — some violation, of the charter. King vs. Mortlock, 3 T. R. 300. Besides, an act of confirmation must be done intentionally and upon consideration. But the cases in which parties have been held precluded by voting, &c., are cases where there was a legal corporation, and the election only was illegal. Our objection here goes further — it goes to the extent that there was no corporation — it was never set on foot by a legal organization ; and one object is to reform the proceedings and purge the corporation of its illegalities — cure it of its rotten and diseased parts. He cited the People vs. Utica Ins. Comp., 15 Johns. 358 ; 2 Bur. 869; 4 Bur. 2022; Ang. & A. on Corp. 474, 698 Then as to the mandamus. It lies where there is no other spe-. cific legal remedy for a legal right. Tapping on Mandamus, 9; 7 Ad. & El. 250; King vs. Bishop of Chester, 1 T. R. 404; 10 East, 406; Bul. N. P. 199; McCullough vs. Brooklyn, 23 Wend. 458 ; Geter vs. Commissioners, 1 Bay, 354; Singleton vs. Commissioners, 2 Bay, 105. Though in general demand and refusal must be shown, yet in this case demand was unnecessary, because it would have been idle. The injury had already been committed. It is like trover, where a demand is unnecessary, if there has been a wrongful conversion. Mr. Mitchell further contended that the Commissioners had the power to make a re-apportionment; and that this was a proper case for the exercise of the discretion of the Court.
    
      Magrath, for the Directors,
    cited Minor vs. Bank of Alexandria, 1 Peters, 65; Commonwealth vs. Union Ins. Co., 5 Mass. 232; Ang. & A. on Corp. 664; Centre Turnpike Co. vs. McConoby, 16 Serg. & R. 145, and said he would advert to the Charter, for the purpose of suggesting a serious difficulty, which would be avoided by the Court refusing to disturb the apportionment. Under the terms of the Act, it was at least doubtful, with whom was the power to apportion in case of over-subscription. At the first meeting of the subscribers, they became a corporate body, with express power given to that corporate body, “to provide for the election of officers, the division of the capital stock as aforesaid, the payment of subscriptions, and all arrangements to put into operation the charters hereby granted.” The apportionment now before the Court had been made by the Commissioners, but adopted by the subscribers at this corporate meeting. It was, therefore, in every way proper to adhere to an apportionment which was approved by these two bodies, and thus save the unpleasant consequences which might result from further interference with it. For the Commissioners have stood before the Court, by the terms of the Act, the nature of their functions, and their own conduct, discharged from further duty. Pour of them had already discharged every duty they could possibly be required to perform. And the application was not only to enforce the performance of a doubtful 'power, but actually to create this doubtful power, for the purpose of having it enforced. Clear, then, as it seemed, from the argument already made, must be the action of this Court in reference to the mandamus, equally clear was the course which this Court must pursue in relation to the quo warranto, against the Directors. They came here, as the officers of a corporation, lawfully created, and chosen at an election ordered by the members of that corporation, and conducted by such rules as had been by them prescribed. The legal principle applicable to questions, arising in relation to the business of a corporation, and the authority of a majority of those composing the corporation, is well laid down by Chancellor Dargan, in the Insurance Company vs. Sebring et al. “A corporation can have but one will, and that will can only be manifested by the potential and uncontrollable voice of the majority.” In every part of this case, that voice has been heard ; and it was to its influence and authority, so declared by Chancellor Dargan, that this Court was asked to refuse its attention.
    But, it is said, the majority of a corporation cannot make that lawful, which is unlawful. This is true; but with this qualification, that the will of that majority operates as lawful, until judicially declared to be unlawful; and though originally unlawful, the conduct of the stockholders may be such as to deprive them of the right or power of objection. In this case, the election was a strictly corporate act, in which the corporators were authorized to proceed, and in which they did lawfully proceed: and whatever is the result, it must stand. Rex vs. Thetford, 8 East, 271. But it is said that the proceedings, which took place previous to the election, are sufficient to avoid it: and that the election, having been conducted without the administration of the oath required in the charter of the Planters and Mechanics’ Bank; and the shares, subscribed under powers of attorney, having been voted on, it is void; and the Directors chosen cannot keep their seats. To both these propositions we will ask the attention of the Court, and will make it clear that they cannot sustain the actors in these proceedings. 1. As to the oath. The charter of the People’s Bank nowhere requires that any such ceremony shall take place at its elections. It is true, that it is required in the charter of the Planters and Mechanics’ Bank ; but the Act of 1852 does not make that part of the charter of the Planters and Mechanics’ Bank, any part of the charter of the People’s Bank. The Act of 1852 makes those regulations and rights which belong to the Planters and Mechanics’ Bank, part of the charter of the People’s Bank, that are, !i herein expressed,” that is, expressed in the Act of re-charter of 1852, and which contains material additions to the charters of the Banks therein re-chartered. And that which very conclusively shows that this portion of the charter of the Planters and Mechanics’ Bank does not apply to the charter of the People’s Bank, is, that the same language, in the Act of 1852, which is supposed to justify the inference that the charter of the Planters and Mechanics’ Bank is a part of the charter of the People’s Bank, would make it a necessary inference that the charter of the Union Bank was also a part of the charter of the People’s Bank. But the charter of the Union Bank does not contain the oath : and the People’s Bank is as much entitled to claim the benefits of its omission in the one charter, as to be affected by its introduction in the other. But if it were otherwise, and, instead of being doubtful, it was clear, that the oath was, in terms, required by the charter of the People’s Bank, its omission would not avail the actors. For even under the charter of the Planters and Mechanics’ Bank, the vote of a stockholder could only be rejected if he refused to take that oath. If he voted, not having taken it, because it was not proposed to him to take it, his vote would be good, and could not be rejected. The Act, requiring such an oath to be administered, is merely directory; and that no advantage can be taken of the omission, is very clearly ruled in the Mohawk & Hudson R. R. Company, 1 Wendell, 140. But sufficient as this view" of the question might be, it is capable of farther and greater elucidation ; and the actors are met with a difficulty which they cannot easily overcome. In this proceeding they cannot investigate the title of the Electors. In quo warranto against the directors of a corporation, it is not competent for the actors to show that the persons, who voted, were incompetent. And this rule is now established too firmly to be shaken. It rests not only upon the authority of cases decided by Judges whose names do honor our jurisprudence, and whose services have built up for us the system of laws we have, but its conformity with reason and propriety is most apparent. It rests upon the familiar principle that no one shall be condemned without being heard. To these proceedings against the Directors, the stockholders, whose votes are objected to, are not parties, and cannot be heard. If, therefore, in this.proceeding, you were to impeach their title, you would disfranchise those who were not before the Court, and could not be heard in their own defence. The rule is therefore wisely made, that, in such cases you must first impeach the right of the elector by proceedings against him, before you can affect the title of the elected, because of the incompetency of such elector. This principle will be found in the case of The King vs. Latham, 3 Burr. 1485. Still more clearly in The King vs. Mein, 3 T. R. 596. And in the case of The King vs. Hughes 4, B. & C. 368 (10 E. C. L. Rep. 361,) stated in the following distinct manner : “ Lord Kenyon held that, where the electors do not fill a corporate office, it is allowable to enter into their title, in questioning that of the elected, because there is no other mode of doing it. But a distinction has long been recognized between such cases and those of corporators ; the titles of the latter must be impeached in a different mode, and this is the first instance in which their claim to be corporators de jure has been attempted to be brought into question in this form of pleading. Nothing could be more mischievous than suck a proceeding.”
    
    But there is another ground upon which these proceedings must be arrested, even here at the threshold. A principle as reasonable, as well established by decided cases, and as difficult to be overcome or questioned, as that first discussed. The principle is, that whatever has been the conduct of the corporation, if the corporator has acquiesced ; if, knowing it, he has in any way sanctioned it, or done, or assisted to do, anything at all affected by the objectionable matter, he is concluded by his acquiescence, and the Court will not relieve him. And what can be more reasonable 1 If the action of a corporation has produced wrong to one of its members, he has his remedy in the Courts. But if he chooses not to make this application, or postpones the application, and allows the corporation to proceed, which it could not have done if he had acted properly, what right has he, after its action has been consummated, to complain? Here, these actors, well knowing all the circumstances, were present at the meeting of the subscribers called by the Comptroller-General, when, by the terms of the charter, they assumed a corporate capacity. The protest, against the action of the Commissioners, expressed a purpose to refer the question to the Courts, or a meeting of the subscribers. Several affidavits, now before the Court, make out that this protestant expressed his willingness to acquiesce in the result of that meeting. The meeting refused to entertain the protest, and what then ? Did these dissatisfied corporators withdraw and ask the Court to make that right which they had declared to be wrong ? Not so. They remained at the meeting — never put off the corporate capacity, with which they were then invested ; but continued and proceeded to assist in all the arrangements necessary to put the corporation in motion. It being necessary to organize, arrangements were proposed for the election of Directors. In this all concurred. In preparing for this, they acquiesced in the appointment of the proper committees, and a resolution was adopted, with apparent unanimity, to proceed in this part of their business, in the same manner that had been adopted by the Farmers’ and Exchange Bank. The day of election was fixed, and these parties, after being present, and concurring in all these arrangements, when the time arrived, either voted in person, or gave to others a proxy to vote for them. Nor is it, until the result of the election announces the defeat of their wishes, that they think of the Court, as an useful means of assisting in the accomplishment of that in which they had failed. These actors then are before the Court, by their acts conclusively adopting the apportionment made by the Commissioners; and standing with those who were avowedly willing to support it. How could the election proceed, except upon the apportionment? How did they vote themselves, unless under the apportionment ? By their own acts, then, have they positively established, because they acquiesced in, that apportionment which they now oppose.
    But while it is thus reasonable, not to allow those who have so acted in corporate matters, afterwards to apply to the Court for relief against their own acts, the cases decided upon this question will show, that the-rule is now rigidly enforced by the Court, in every matter proper for its application. In the King vs. Mortlock, 3, T. R., 300, the Mayor was elected contrary to a by-law, but an agreement was made not to enforce the by-law. Afterwards it was attempted, and the case came before Lord Kenyon, who thus ruled : “We determine this wholly on the agreement which distinguishes this case from the King vs. Bond, and on that ground solely, namely, that the party, who is now attempting to impeach the defendant’s title, concurred in an act, by which some of the corporation agreed not to support the by-law.”
    In the King vs. Symmons, 4 T. R. 224, Gibbes, who was counsel for the actors, yielded the point, that three of those who moved for an information were not entitled to ask it, having concurred in the election.
    In the Mohawk & Hudson R. R. Company, I Wendell, 140, it was ruled, that “ it does not lie with any one knowing of the irregularity, to make the objections, who voted, either in person or by proxy.” The same principle will be found in the King vs. Cudlipp, 6 T. R., 507, and best stated in the King vs. Slythe, 6 B. and C. 240, (13 E. C. L., 159,) where Abbott C. J., ruled as follows: “ It has been generally considered a rule of corporation law, that a person is not to be permitted, to impeach a title, conferred by an election, in which he has concurred, or the title of those mediately or immediately derived from that election..” And this principle, so distinctly stated, is carried out by the same learned Judge, holding, that he would presume the corporator knew all the facts of any particular matter relating to the corporation, “ unless he shows the contrary."
    
    In the King vs. Trevenen, 2 B. and A., 343, “ the Court held, that as to Trevethan, his having concurred in the election was a fatal objection. He was bound, as a corporator, to have known that the title of Rogers to the office of Alderman, was bad, and his having concurred in an act which depended for its validity upon the circumstance of Rogers being at that time an Alderman, prevents him now from having the right to come forward and impeach that title. The principle which governs these cases is the acquiescence of the relator, in the objectionable election, at the time."
    
    Still more than this, there was no challenge or exception made to any vote ; and, in the case of the Chenango Company, 1 Wendell, 633, it is ruled, as quite clear, that, “generally speaking, an illegal vote, not challenged, will not invalidate an election.”
    While, then, these are difficulties which no art can remove, there are other circumstances, which, of themselves, would make it impossible for the actors to obtain the rule they are asking. The Court is asked to set aside this election, without being furnished with the slightest information as to the number of votes alleged to be had. In Ex parte Murphy, 7 Cowen, 153, it is held to be not sufficient to show that improper votes are received at an election, unless there is a sufficient number of such votes received for the successful candidate to reduce his vote to a minority, if these bad votes are rejected. There is no showing made here to lead to the conclusion that any bad votes were given to the Directors who are elected ; still less is there any evidence that a sufficient number was given them to reduce them to a minority, if such votes are rejected.
    
      But it is not only that all these difficulties must.be overcome, but when overcome, no person stands before the Court, claiming the seat thus to be vacated. No one is bold enough to assert his right to any of these places; nor yet ambitious enough to seem to desire it. This circumstance exercised great influence with the Court in the State vs. Schnierle, 5 Rich. 212. There, as here, a seat was disputed, with no claimant before the Court; and here, as there, the Court will find, in that fact, enough to warrant its refusal of the application. If, then, there is no one before the Court claiming one of those places, there can be but one other reason suggested for the interference of the Court, and that is, the reduction in the amount or number of shares, to which some of these subscribers have been forced to submit. But it is a remarkable circumstance, that while some of them complain of this reduction, not one of them claims to be entitled to receive more than he now has. And if such a claim was made, its absurdity would be exposed by the fact, that such complaining subscribers can now purchase as many shares as they desire, at one-fifth less than such shares would have cost at the time of subscription. And this is not a surmise, but a fact, brought to tho notice of the Court by testimony which proves that since the election a large number of shares have been sold at the rate of $4 per share ; and we have the certificate of a Broker that he will agree to furnish 500 shares at that rate — an amount much greater than all of these actors desired’ or now desire to have.
    This application, then, is not made to afford relief to corpora-tors who have been wronged by any action of the Corporation. For no one asks to be put in the place of the Directors, if their seats are vacated; and no one can be injured by losing the chance of buying for $5, that which he can purchase for f 4.
    Much has been said of the duty which devolved on the Court, to vindicate the. public morals of the community, by directing these rules to be issued; but it could be easily shown how much more conducive it would be to good morals for the Court to show that it could never be appealed to as the arbiter in such. disputés as this. Of all contentions which divide a community, those, where money is the controlling element, are most to be dreaded. They begin with corruption, proceed in corruption, and end in corruption. It is not only those who are the willing subjects of such influence, that become deeper involved in the infamy which surrounds them, but higher and better spirits infected with the zeal for success, lend themselves to practices which a sober reason rejects, if it does not positively abhor. Once destroy the safeguards behind which these passions now lie securely confined, and their fury will .overcome all who may even venture to oppose them. They will find themselves carried along, and swelling the force of a torrent which will be strong enough to make the captors captive. How then can public morals be vindicated, if such consequences are to ensue ? Re-open the contest, and all that is evil in the transactions that are past, will be multiplied to an infinite degree. It is true that the judgment of a Court is not generally to be influenced by considerations of the consequences which may ensue. But this application is addressed to the discretion of the Court. That discretion, so aptly defined and explained by the same Judge who now hears this application; and the exercise of that discretion cannot be more properly exhibited than in now considering that whatever may have been the force or weight of any or all of the objections heretofore urged, they have been known, discussed, and decided by the members of the corporation. That, in this decision, they who were dissatisfied have either positively acquiesced, or will be considered, by their acts, to have done so,- and are not entitled now to that aid which they seek from this Court, and to which, under other circumstances, they might have been entitled, (
      
      )
    
    Mr. Magrath also cited Stockdale vs. South-Sea Comp., 2 Atk. 141; People vs. Kip, 4 Cowen, 382; Cowp. 503-7; Ang. & A. on Corp. 418; Johnston vs. South- Western Railroad Bank, 
      3 Strob. Eq. 263; Greenville and Columbia Railroad Company vs. Coleman, 5 Rich. 143.
    
      Yeadon, for the Commissioners, called on the Court to reflect that this was not an application, on behalf of the sovereign — on behalf of the State — to seize the charter of the Bank, as forfeited by the malfeasance of its stockholders, or conductors, but it was an attempt, on the part of a few individuals, to invoke the high process of mandamus, in assertion of alleged private right or redress of imagined private wrong. If the present proceeding were aimed at the charter itself, then, supposing the alleged malfeasance to be proved, the elaborate speech of the counsel, who had opened the argument, would have been as pertinent as it was able and ingenious ; but, in the shape now given to the controversy, his remarks had no application to the real issue.
    The real parties of the case were, on the one hand, a few individuals, a mere handful of a defeated party, in a contest for office; and, on the other hand, not only the Commissioners charged with malfeasance, and the President and Directors elect, but the great majority of the stockholders, composed, for the most part, of persons, wholly innocent of the alleged misconduct — of honest and honorable men — of widows and orphans, churches and charitable societies, who had sought an investment of their funds in the stock of the Bank. In such case the Court should be cautious, and see their way clear, before they arm the relators with the high and stringent process which they claim — one involving ultimate incarceration, for contumacy, within the four walls of a jail — and yield it to them only, on a satisfactory showing that it is asked on clear right and with clean hands, and as necessary, as well to vindicate good government and public policy, as to establish private right — on such a showing as should convince the Court that the application of the remedy in question was imperatively required of upright, independent and impartial judges, in the exercise of a sound and salutary discretion.
    The proper decision of the case required a thorough examination and discussion of the law of mandamus.
    
    
      The writ of mandamus was referable in its origin to Magna Charta “ nulli negabimus aut differ emusjustitiam vel rectum It was, at first, a letter missive, from the sovereign power, commanding the performance of a particular act or duty, by those to whom it was sent; to it no return was allowed, and disobedience was punishable by attachment. In the latter part of the 15th century, it became a parliamentary writ, grantable on petition, and issuable per regem et concilium; and was chiefly used to enforce restitution to public offices — and hence took the name of a Writ of Restitution. At length, it assumed the shape of an original writ, issuable from the King’s Bench, and was grantable, in all cases where there was a legal right to justice, for which the law had not provided any specific legal remedy; and, by an amplification of its jurisdiction, it was allowed to embrace matters, not strictly involving the notion of a restitution, as where it commanded admission to an office &c. It then resumed the name of mandamus, which it has ever since retained, taking this appellation from the first latin word of the mandatory clause of the writ — and the Courts became more liberal in extending its remedial character and powers.
    “ The modern writ of mandamus may be defined to be a high prerogative writ, breve regium, and not a writ of right — it is properly in its nature a writ of restitution of a most extensive and remedial nature, to the aid of which the subject is entitled, upon a proper case, previously shown, to the satisfaction of the King’s Bench.”
    For this historical detail of the origin and nature of the writ of mandamas, he was indebted to Tapping on Mandamus, pp. 1, 2, 3, (66 vol. Law Library, 3d series, pp. 56, 7, 8,) a new English work, containing an admirable condensation of the law of mandamus, in which the text, so far as he had occasion to test it, was well supported by the authorities cited.
    According to Buller’s Nisi Prius, p. 199, the writ of mandamus is a prerogative writ, issuing out of the Court of King’s Bench, and is the proper remedy to enforce obedience to Acts of Parliament, and to the King’s Charters, and in such case is de-
      
      mandoble of right; but, where the right is of a private nature, as to an office, in which the public is not concerned, such as a deputy register, &c., it is discretionary with the Court to grant or refuse it.
    
    In Jacob’s Law Directory, Title Mandamus, it is styled, “ a prerogative writ, introduced to prevent disorder, from a failure of justice and defect of police, and therefore ought to be used on all occasions, where the law has established no specific remedy, and where, in justice and good government, there ought to be one.”
    The writ of mandamus, then, is a high prerogative writ, de-mandable of right by the sovereign or the State, but grantable, to the subject or the citizen, in matter of private right, only at discretion, and on satisfactory showing, both in regard to the right claimed and the necessity of the remedy.
    This high prerogative writ is grantable to the citizen only on terms and conditions.
    It is an essential preliminary, a condition precedent, to its being granted to the citizen, that there should have been a distinct demand, on the public functionary, for the right or duty claimed, and an equally distinct refusal, on his part, to yield it.
    This is a leading principle of the law of mandamus, and one of imperative obligation; and it meets the relators in limine, and is fatal to their application, there having been neither demand nor refusal in the present case.
    It is an imperative rule of the law of mandamus that, pre viously to the making of the application to the Court, for a writ, to command the performance of any particular act, an express or distinct demand, or request, to perform it, must have been made by the prosecutor on the defendant, who must have refused to comply with such demand, either in direct terms, or by conduct, from which a refusal can be conclusively implied ; it being due to the defendant to have the option of either doing or refusing to do, that which is required of Mm. Both the demand and refusal must also be shown, on the affidavits made use of in support of the rule. The demand must be made pér-sonally on those from whom the duty is required. It must be express and distinct, and not couched in general terms — it should accurately demand a performance of that which the defendant legally can and should do. There should be enough, from the whole of the facts, to show to the Court, that, from some improper reason, compliance is withheld, and a distinct determination exists not to do what is required. The refusal must not only be clear, but must be made by those properly called on to do the act, &c. Finally, the refusal must clearly appear by the affidavits, in order that the Court may judge as to its sufficiency. Tapping on Mandamus, 282, 287. (66 Law Lib. 332-237.) This objection has been sneered at or disparaged as a technical one; but, although it is technical, it is founded on substance, and involves an important and salutary principle. This principle 'is that no public officer or functionary shall be presumed to be a defaulter in the discharge of duty, nor be subjected to the criminal and stringent process of mandamus, until he has had the option to comply or refuse, i. e., until he is voluntarily and deliberately in default. The law is not disposed to presume him wrong, but rather to protect him; it does not invite, but discourages litigation.
    In Buller’s Nisi Prius p. 199, it is said the Court will not grant a mandamus, until there has been default, and therefore in a case of the King vs. The Borough of St. Ives, where a mandamus was granted to the Churchwardens and overseers of the poor to make a poor’s rate, the Court will not grant a mandamus, at the same time, to the justices to allow it: they would not presume the justices would not do their duty; although the same justices had before refused to allow a rate, when a mandamus had issued for the purpose, and they had been taken up, but the term before, upon an attachment for contempt. So the case of the King vs. The Company of Proprietors of the Brecknock and Abergavenny Canal Navigation, 3 Ad. & El. 217-224, 30 Eng. Com. Law R. 81, is full of the highest authority to the same point. It was a case where the Court applied the rule with regret, as by reason of its interposition, an important case was made to go off on a technicality, and not on its merits.
    Denman, C. J. “ This case must go off upon a point not bearing on the merits. We cannot grant a mandamus, unless there has been a direct refusal. It is not indeed necessary that the word ‘ refuse,’ or any word, equivalent to it, should be used; but there should be enough to show that the party withholds compliance, and distinctly determines not to do what is required.”
    Littledale, J. “ I am of the same opinion. It is not necessary there should have been a refusal in so many words; but here the Company only answered by requiring an indemnity. There should, after that, have been a formal and distinct demand to warrant the motion.”
    Patterson, J. “I am sorry the case should go off on this point; but the Canal Company had at one time agreed to perform the works, and nothing is shown which amounts to an express rescinding of that consent. When Hartford &. Co. declined indemnifying, they should have followed that up by a direct application to have the works done.”
    Coleridge, J. “ A mandamus ought not to be moved for, unless the party, alleged to be in default, has known distinctly what he was required to do, so as to exercise an option whether he would do it, or not. In this case it is not even clear that the Company knew, after the refusal of indemnity, whether Hartford & Company had not given up their demand.”
    Then, what were the facts. The Respondents had admitted persons, having written authority to that effect, to subscribe for stock, in the name of others, to the number of five shares each— the charter, forbidding persons to subscribe in the names of others for their own benefit, and subscriptions of five shares, and under, not being reducible, under the charter, in case of excessive subscription. The subscription being excessive, they reduced the number of shares, to be allotted to those who had subscribed for more than five shares each, and gave public notice that they would pay over the surplus subscriptions to the several parties interested. Mr. Rice Dulin, the principal Relator, who had subscribed for a large number of shares, [2000,] thereupon served upon the Commissioners the following written notice :
    “I hereby notify you that I object to the legality of the subscriptions, made under powers of attorney for five shares each, on the ground that the said subscriptions were not made for the benefit of the subscribers, but for other parties ; and I object to any allotment of shares on those subscriptions. It is my intention to adopt such legal measures as may be necessary to enforce my objections, and [I ] give you this notice not to pay over the monies which have been received by you from subscribers, till the question has been decided by the proper authority, or until after the meeting of the stockholders, to-morrow.
    Yours, respectfully,
    Rice Dulikt.
    Charleston, 25th April, 1853.”
    The Commissioners complied, to the letter, with Mr. Dulin’s notice or requisition ; they stayed their hand; paid over monies to no one, but referred their whole proceedings, with Mr. Dulin’s notice, to the meeting of the stockholders, which took place the next day, under the charter; Mr. Dulin attended the meeting, and took part in its discussions, defending his notice, or protest, and its grounds; and he promised, or declared, that he would abide by the decision of the meeting. The stockholders dissented from his views, laid his resolution on the table, ratified or adopted the mode, or scale, of apportiontment, reported by the Commissioners, and otherwise ratified their proceedings, and ordered an election for President and Directors to take place, the ensuing Monday. In this action of the meeting, Mr. Dulin acquiesced by the most significant acts: 1st, by being the very first person to apply for and receive his surplus subscription— 2d, by voting, in his own right, and as proxy for others, at the election for President and Directors.
    After the alternative notice, already stated, he made no demand of any kind whatever, on the Commissioners; and no further or other notice was ever served on them, at the instance of the Relators, save a notice, through their counsel, after they had received their surplus subscriptions, and after the defeat of their ticket for President and Directors, not to pay over the subscription money, in their hands, to the President and Directors elect, as there had been no regular organization, nor any due election for officers, in accordance with the charter, and as legal proceedings wore about to be taken to bring the matter to a judicial determination; followed by another notice, through the same counsel, of a motion, before his Honor Judge O’Neall, on Saturday, the 14th [May, then] instant, “for a rule to show cause why a writ of mandamus should not issue, directed to them as Commissioners, appointed by the Comptroller General, to receive and apportion (?) subscriptions to the People’s Bank, directing and commanding them to apportion the said subscriptions and stock, among the bona fide subscribers, according to the amounts, subscribed by them in their own names.”
    The duty now required of the Commissioners is to re-apportion the stock, on a different principle from that adopted by them, and ratified by the meeting. It is clear that no demand, to that effect, had ever been made on them, nor any intimation, given them, that such a thing was desired or contemplated, until the notice of the application for the present rule, and a notice or threat of a law-suit could not possibly be construed into the previous demand, required by the law of mandamus.
    
    There, then, having been no demand, there could not, of course, be any refusal. The Commissioners, therefore, have had no option and are not in default — and are not the subjects of mandamus : And even the intimation, that a re-apportionment would be claimed, under the process of mandamus, came too late for any practical or practicable purpose. It came after Mr. Dulin and others had received back their surplus subscriptions, and after the Commissioners, by parting with the money, had parted forever with their power over the subject-matter— after the thing had become impracticable, and that by the act and example of Mr. Dulin himself, and his confederates. Indeed the Commissioners, and all others, had a right to conclude that Mr. Dulin had acquiesced in the action of the meeting, and abandoned his objections.
    On this head, then, it only remained to be shown that the objection of the want of demand and refusal was taken at the proper time — that the Respondents had done nothing to waive it, or estop them from making it. The case of the King vs. The Brecknock and Abergavenny Navigation Company, already cited, from 3d Ad. & El. 217, settles the question. There the objection was taken, on the return of the rule, before the merits were discussed, and determined by the Court, amidst the. expression of its regrets, that so important a cause should turn on a technicality instead of the merits. So, in the case of Regina vs. Eastern Counties Railway Company, 10 Ad. & El. 531-537, 37 Eng. Com. L. Rep. 174, Lord Denman, Chief Justice, enunciated the rule, on this subject, negatively but authoritatively, thus — “ No objection can, we think, be taken, to the sufficiency of the application and refusal, after the merits have been discussed ; that is a point which ought to be raised in the first instance.”
    “ The objection, as to the neglect of a demand in the absence of a refusal should, in order to prevent a waste of time, be made ■, in the first instance, viz: on showing cause against the rule for the writ, and cannot be made after the merits are discussed.”
    “In M. T. 3d Yic. — Lord Denman, C. J., announced that the King’s Bench had come to the resolution not to entertain an objection to a rule for a mandamus, on the ground that there had been no refusal to do the thing required by the writ, unless such objection should have been taken at the outset of the argument, in showing cause.” (3 P. & D. 123, n. (d) Tapping on Mandamus, 287; 66 Law Lib. 336.)
    In this case, the rule, as thus defined and limited, was strictly observed, and the objection was formally taken, before his Honor Judge Peost, on the return to the rule, previously to the discussion of the merits, and it was fully sustained by that Judge, who, however, declined to rest the case on the technicality, and went on to decide, in favor of the Respondents, on the merits also.
    The Relators, then, are met at the threshold, and estopped and repelled from entering within the portals of justice, with their false clamor.
    2. The next position, taken by Mr. Yeadon, was that mandamus would only lie to enforce a specific legal right — that the claimant must show title to the thing claimed. To this point he cited several authorities, ancient and modern. Mandamus is resorted to, on all occasions, where the prosecutor has a legal power, consequent upon the violation of some legal right or duty, for which the law has not established any specific or adequate legal remedy, and where, in justice and good government, there ought to be one. (Tapping on Mandamus, p. 3 ; 66 Law Lib. 58.) In the case of Dominus Rex vs. Dublin, l Strange’s Rep. 536, where application was made for a peremptory mandamus to admit Robert Dowgate to his stall in the choir, and his voice in the Chapter: Fortescue, J. held “ that a mandamus is now become a formed writ, and, like other writs, must bear teste in term. (2 Keb. 91.) It is like a civil action; the party must show a title, and the return must either admit or deny it.” So, in our own case, (a leading one on the subject,) that of The State vs. Bruce, 1 Treadway 165-174, it was held that a mandamus is a criminal proceeding, relative to civil rights, and that it is especially the duty of Courts to exercise such power where the administration of justice and the public interest are concerned ; that it is always incumbent on him who claims the benefit of this process to show, 1st, that he has a specific legal right, and 2d, that he has no other specific legal remedy; and that the party claiming the aid of the Court must show a title, at any rate a good color of title, and not an abstract moral right.
    The prosecutor must be clothed with a clear, legal and equitable right, which is properly the subject of the writ; as a legal right by virtue of an act of Parliament. (Tapping 28; 66 Law Library, 78.)
    
      In the case, before the Court, there was an entire absence of title or legal right, in the relators, to the thing claimed, viz., an allotment of additional stock. Conceding that they had an original right to more stock than was assigned them, they forfeited or rather released the right, when, without compulsion, or necessity of any kind, they acquiesced in the decision of the corporation as to the apportionment of stock, and received back their surplus money, thereby inducing others to do so likewise— and when they recognized the corporation as rightfully constituted, by obeying its direction or conforming to its action, and especially by taking part in the election for President and Directors, as voters, according to the scale of apportionment, now complained of, one of them (Mr. D. F. Fleming) actually running as a candidate — a defeated candidate, for Director.
    The instant they received back their surplus subscriptions, their supposed legal right was gone — it was no longer even in nubibus, but gone altogether. Had they designed to insist on their alleged legal right, they should have refused to receive back their money, and persisted in demanding their stock. They cannot have their money and their stock' too. Shylock could only claim the penalty of the bond — he could not have the pound of flesh and the money too. The case of the relators was similar to that of the purchaser of real estate, who, on some disagreement with the vendor, had voluntarily taken back the purchase money, and thus extinguished his legal right, his title to the estate purchased. Could a purchaser, in such a predicament, claim specific performance of the contract? In like manner, the relators, by voluntarily accepting back their surplus money, the payment of which alone entitled them to the additional stock, extinguished their right and title to it forever, and they stand wholly without remedy — nay, they have no wrong or grievance to redress.
    What would be the result of the contrary rule. Let the Court decide that they are entitled to the stock they claim — does it follow that they will take it, or can be compelled to.take it? If the stock should be above par, they would doubtless gladly avail themselves of the benefit. But the stock is now below par, mainly from their litigation. Would they take it, at full price, when they can buy it at a large depreciation ? If money be their object, they might decline to avail themselves of a favorable but bootless decision of the Court; and the corporation might have to resort to a multiplicity of expensive law-suits, and those of doubtful issue, to compel them to take the stock— and, even if they might be compelled to conform to the award of the Court, in their favor, how would it be with the numerous other subscribers, strangers to this application ? Could they be compelled to repay money, voluntarily refunded to them by the corporation, and to take depreciated stock ? In either case, the game would not be worth the candle.
    Would the Court then arm these relators, one of them a violator of his pledge or promise, with this high prerogative writ, only to enable them to take stock, if profitable, and to reject it, if unprofitable, and leave the corporation the poor privilege of doubtful and costly litigation?
    3. Mr. Y. then proceeded to his third position — that to entitle one to a mandamus he must have not only a specific legal right, but he must have no other specific legal remedy. Several authorities had already been cited on this head, in the discussion of the immediately preceding position and elsewhere. In Tapping on Mandamus, p. 13, (66 L. Lib. 65,) it is said to be the constant practice “to grant the writ to command the performance of any public duty, for which there is no specific remedy,” “although the value of the public duty is not scrupulously weighed.” “The King’s Bench will not interpose, by the extraordinary writ of mandamus, unless the applicant have not only a specific legal power, properly the subject of this writ, a fulfilment of which is demandable from the person to whom such writ must be directed, but also there must not exist a specific legal remedy, whereby the fulfilment of such power may be compelled, so that the writ will not be granted unless to prevent a failure of justice.” (Ibid 10, 66 Law Library, 62.) “Where action will lie for complete satisfaction, equivalent to a specific relief, the Court will not interfere.” (Ibid 20, 66 Law Library, 71.)
    It was true, that Tapping gave a few exceptions to the general rule; and no one contended for its universality. The exceptions, however, were where the remedy was inadequate, such as indictment, which only punishes the wrong-doer, without redressing the private wrong. He also intimated that equitable relief was in the excepted category. He however, qualified the admission thus : “But, if the Court of Chancery have full jurisdiction, as in a matter of a title to an estate, and be a fitter tribunal for the investigation, the Court will refuse the writ.” But this exception was now exceedingly questionable. For, in Angelí and Ames, on Corporations, 379, it is said — “ It is true that the Courts, in laying down the rule usually say that mandamus will not lie, where there is another specific legal remedy; but, in the King vs. Free Fishers of Whitstable, and in the King vs. The Bank of England, the Court of King’s Bench gave, as a reason for refusing a mandamus, that there was a complete remedy in Chancery; and there seems but little reason, at the present day, for a Court of Law refusing to notice the relief that Chancery can afford.” The general principle, however, was clear and indisputable that, where there is an adequate legal remedy, by action on tRe case, quare impedit or otherwise, mandamus wilL not lie. The research of the counsel for the relators, who opened the argument, had succeeded in discovering but a single case, which contained, not authority, but only a dictum, for enlarging the exception to the rule. He cited Bronson, J., in the case of McCulloch vs. The Mayor of Brooklyn, in 23 Wendell’s Rep., p, 46, as saying — “although, as a general rule, a mandamus will not lie where the party has another remedy, it is not universally true in relation to corporations and ministerial officers. They may be liable in an action on the case, for a neglect of duty, yet they may be compelled by mandamus to exercise their functions according to law.” On looking into this case, however, it turned out to be no case of mandamus at all, but an action of assumpsit, which went off on a demurrer, and Judge Bronson’s dictum will scarcely be regarded as authority to overturn an old and establish a new principle.
    Mr. Y. proceeded to show that the relators had once had it in their power to apply a specific and adequate legal remedy, in one or more preventive forms, and had neglected to avail themselves of it. Having had full knowledge of the subscriptions, and the apportionment of stock, alleged to be illegal, they might have resorted to a mandamus to the Commissioners, or to the corporation, or to both, to obtain their alleged rightful apportionment of stock, or to a prohibition either against the Commissioners or the corporation, or both, to prevent them from apportioning the stock, or refunding surplus subscriptions, or they might have interposed, at an earlier stage, and taken out a prohibition against the Comptroller General to prevent his calling the subscribers together and thus constituting them a body corporate under the charter. The neglect to apply one or the other of these plain and obvious legal remedies was sufficient to estop them from relief by mandamus. So, too, as the object they have in view is to obtain their alleged rightful share of stock, they may have an adequate legal remedy in an action on the case, for damages, against the corporation. And so Judge Fhost had ruled, on Circuit, in this very case, on the authority of several cases. Rex vs. Bank of England, 2 Douglas, 553; Shipley vs. The Mechanics’ Bank, 10 Johns. Rep. 484; the King vs. Bank of England, 2 Barn, and Aid. 620. So, too, there can be but little doubt that Chancery is an adequate and more fitting tribunal for the relief sought, if there be any title to it. Further, it might be added, as the counsel for the respondents to the quo warranto had clearly shown and eloquently urged, that they had still another remedy, outside of the Courts and without the expense of litigation. If they sought office, a new election would soon be had, and they might run another and more successful tilt for possession of the Bank parlor. If they wanted more stock, it was now considerably below par, and they might obtain it, in any reasonable quantity, much cheaper than by expensive litigation to get it at par.
    
    4. A mandamus will not be granted where it would be nugatory, or vain and fruitless, or could not have a beneficial effect, nor where it must ultimately fail, or would introduce confusion and disorder, or be vexatious, or where the right of defendant to act was doubtful. The object of the writ being to prevent a failure of justice, and to provide an immediate and efficacious remedy, it follows that it would not be granted, if, when granted, it would be nugatory — Lex non cogit ad inutilia. The principle, on which alone the King’s Bench exercises this prerogative power, is, that a strong political necessity for such an extraordinary remedy exists, and that without it the ends of justice must be defeated. (Tapping on Mandamus 15, 66 Law Lib-67.) So the Court will refuse it, if it bo manifest that it must be vain and fruitless, or cannot have a beneficial effect. {Ibid.) So the Court will refuse it, if it see that it must ultimately fail. In Strange, 763, the Court, on allowing the return, said that a peremptory mandamus would not be granted, there appearing there was then no power to execute the writ, the commission of the defendants having expired four days after the delivery of the writ. {Ibid. 15 — LG, Law Lib. 68.) So the Court will not grant the writ, if it will introduce disorder, or be vexatious. {Ibid. 16.)
    In Rex vs. Ely, [Epis.j 1 W. Bl. 59, 1 Wils. 266, Foster, J., said “the case of the Mayor and Corpoiation of New Castle is strong to show that the Court will not grant a mandamus, where it will introduce confusion and disorderand Lee,nC. J., said “ no instance can be found where the Court ever granted a mandamus to a person to exercise a jurisdiction, which it was doubtful whether he had power to exercise or not.”
    In Rex et Regina vs. St, John's College, Comb. 238, Levinz, J., said, the Court may deny a mandamus, if it appear to be vexatious.
    
    
      The application of these principles would more fully appear in the sequel,-but the most casual glance at the facts of the case would show that the attempt to execute the writ would be fruitless, and without beneficial effect; cause infinite embarrassment and vexation, to both commissioners and subscribers ; produce “ confusion worse confounded,” and resitlt in a dead failure, from downright impracticability, and utter want of power in the Commissioners to execute the behest of the Couri.
    5. The mandamus could not be granted, because the rule had not been moulded to suit the exigencies of the case, and the rule was, and the writ of mandamus, which must follow the rule, would be too uncertain and indefinite. It was a settled principle of the law of mandamus that the Court, on an application for a rule to show cause why a mandamus should not be issued, may mould the rule for the purposes of justice, but it cannot mould the writ itself. (Tapping on Mandamus, 305-337, 66 Law Lib. 353-381. Rex vs. Paneras, 3 Ad. & El. 535.) So rigidly was this principle enforced, that, where a mandamus differed from its rule, not merely by adding things incidental to the object of the writ, but by materially enlarging the terms thereof, the Court quashed the writ, notwithstanding it might, upon the same affidavits, have granted a rule, as extensive in its terms as the informal writ, if it had been applied for. (Tappingon Mandamus, 310-337, 66 LawLib. 357-381.) Rex vs. Water Eaton, (Manor,) 2 Smith, 54. The mandatory clause must not only clearly and accurately express that which it commands the defendant to do, but such command must not exceed but be in exact conformity with the legal obligation of the defendant, or the Court will, on motion, quash it, for the Court cannot mould the writ as it would the rule. (Tapping 327, 60 Law Lib. 372.)
    In the case before the Court, no rule at all had been issued or served, although a very indefinite one had been ordered. Nothing but a notice, signed by counsel, had been issued and served on the respondents. ' ■. •
    
      The original notice was of a rule to show cause “ why a writ of mandamus should not issue, directed to you, as Commissioners, &c., directing and commanding you to apportion the said subscriptions and stock, among the bona fide subscribers, according to the amounts subscribed by them in their own names.”
    The order of Judge ONeall was ‘‘that a rule, to show cause why a mandamus to re-apportion the stock of the People’s Bank should not be granted, do issue, from the Court of Sessions for Charleston District, directed to the Commissioners, [by their names,] and returnable to the next term.” This order of the Judge was the rule to be answered, as no formal rule had been issued. It was only followed by the ensuing notice, signed by counsel.
    “ Ordered, that Thomas Lehre, E. P. Starr, W. J. Bennett, J. Prevost, Thomas N. Gadsden, and G. S. Cameron do show cause, on the 24th October instant, at the Court of Sessions for Charleston District, why a mandamus should not issue, directing them to re-apportion the stock of the People’s Bank, agreeable to charter. Nelson Mitchell,
    
      For the Relators.”
    
    Under this informal proceeding the respondents had come into Court, and by it and its antecedents the relators must abide, and stand or fall. Strictly speaking, a rule should have been applied for, by motion before Judge Frost, at the October sessions, as Judge O’Neall had only ordered a rule to issue from that Court, and the respondents may have refused to answer the notice. They waived the objection, however, after demanding, in vain, a more formal rule, but warned the counsel for the relators that they must stand to and take the consequences of their informal and indefinite proceeding or notice. The original notice was of a mandamus “to apportion subscriptions and stock, among the bona fide subscribers, according to the amounts subscribed by them in their own namesfi excluding, in terms, all subscriptions by attorneys or agents, in the names of their principals, whether bona fide or not!! Judge O’Neall’s order moulded or modified the rule, but rendered it still more indefinite than the original notice. It was predicated of a mandamus simply “ to re-apportion the stock of the People’s Bank,” without any directions whatever as to the modus operandi, or principle of re-apportionment, nor saying whether bona fide subscriptions, under power of attorney or other written authority, were to be excluded or not, or even whether all or any subscriptions by attorney or agent, should be excluded or not. This, howevei^ was the only rule in the case, and the writ must follow it. But, if the subsequent notice of counsel were relied on as the rule, taking, as it had done, the strange liberty of enlarging the rule, as ordered by the Judge, what would the relators gain by it? It was merely a notice to re-apportion the stock “ agreeable to charter,” the words “ agreeable tq charter ” being an unauthorized addition. But even with this amendment, it was still too • vague, uncertain and indefinite to be acted on. It still left the Commissioners without compass or chart: it told them not what was “agreeable to charter”' — it gave them neither modus ope-randli, nor principle of apportionment. Should .the writ of mandamus, then, be issued, it must follow the rule, and simply require the Commissioners, as ordered by Judge O’Neall, “to re-apportion the stock of the People’s Bank,” or, as ordered by counsel, to “ re-apportion the stock of the People’s Bank, agreeable to charter.”
    It has been expressly decided that a writ, thus indefinite, should be quashed — that a mandamus, calling upon a board of vestrymen to produce their accounts to auditors at such time and place, or at such times and places, as a majority of the auditors might appoint, [the Act of Parliament only authorizing two meetings of the auditors, in each year, to audit accounts,] and then and there give such information, as to the accounts, as they might be enabled to give, “ according to the directions of the said Act,” [i. e. “ agreeable to charter,”] exceeded the authority given by the statute, and that “the generality of the command was not qualified by the words, ‘according to the directions of the said Act,’ as such expression required the defendant to look dehors the writ, in order to ascertain the duty which was required of himand it was also decided that such accuracy is necessary, notwithstanding the writ may contain a recital, properly stating and limiting the right, as its generality cannot be satisfied by obeying a limited requisition, stated in a recital, and because the defendant is not bound to refer to any part [of the writ] but the mandatory clause, in order to ascertain what is required of him. Tapping 327, (66 Law Lib. 372,) Rex vs. iSt. Paneras, 3 A. and E. 535 ; R. vs. Eastern Counties Railway, 2 Q,. B., 569, and numerous other authorities there cited.
    Mr. Y. next proceeded to examine the provisions of the charter, and insisted,
    6. That the Commissioners had no power, originally, to apportion the stock, and therefore could have none now to re-apportion it.
    The charter authorized the Comptroller General to appoint Commissioners, at Columbia and Charleston, or elsewhere, as he might decide, to open subscriptions, between the first days of April and July, then next ensuing, to the capital stock of the People’s Bank, and seven other new banks named in the statute. In addition to the duty of opening subscriptions, as already stated, they were invested with the following express powers, and no other: 1. To require $5, on each share, from subscribers, in specie or notes of specie paying banks. 2. To deposit the same in such banks as the majority of the subscribers shall designate, for the use of the respective banks, on the first meeting of the subscribers.
    The charter next directed the Comptroller General, as 'soon as the subscriptions should be respectively filled to the amount of the capital stocks of the several banks, to notify the subscribers to meet, who should '''thereupon become a body corporate, with the same privileges and rights as the stockholders of the banks [the Planters and Mechanics’ Bank, the Union Bank, and the Commercial Bank of Columbia,] whose charters are hereby renewed.” Hence arose the implied power or duty of the Commissioners, under the charter, to notify the Comptroller General, that the subscription had been filled to the amount of the required capital. The charter further provided that it should “not be lawful for any person to subscribe for shares in the name of other persons.” Hence arose, perhaps, another implied power or duty of the Commissioners, to reject subscriptions by persons, in the names of other persons, not made bona fide for the benefit of the latter, but in fact for the benefit of the former, provided the Commissioners should come lawfully to the knowledge of the fact. There are no other implied powers or duties, in the Commissioners, to be deduced from the Act or charter. All the other powers and duties are expressly conferred on the subscribers themselves, on becoming a body corporate by the mere act or fact of meeting, on the call of the Comptroller General. On doing that, and so becoming a body corporate, the charter expressly empowered the subscribers, 1. To “make all by-larvs, not inconsistent with the laws of the land.” 2. “ To provide for the election of officers.” 3. To provide for “the division of the capital stock, aforesaid” — i. e. for the apportionment of the stock in case of excessive sub-cription. 4. To provide for “ the payment of the subscriptions,” or future instalments; and 5. To provide “for all arrangements to put into operation the charters hereby granted.” A proviso directed “ that, in case of over-subscription to the stock of any of the aforesaid banks, the said subscription shall be reduced pro rata, but no subscription of five shares or under shall be reduced,” — but the duty of reduction devolved on the “ body corporate,” not on the Commissioners, as incidental to, or identical with the express power of the former to divide or apportion the capital stock among the subscribers.
    The duty of the Commissioners, under this legislation, was clear and simple. They had only to open the subscriptions, as directed; to require $5 down, on each share subscribed; to de-posite the subscription-money in some bank, designated by a majority of the subscribers, at the time of subscription, or “at their first meeting;” “to the use of the People’s Bank,” and to notify the Comptroller General that the subscription had been filled. Having done this, they would have been functi officio, and have ceased to exist as public functionaries, and would have escaped their present annoyance. Their only error was in depositing the subscription-money to their own credit, instead of “ to the use of the People’s Bank,” which it was then, and still is their duty to do ; and it is only their failure, or omission to do their duty, in this particular, that keeps them still (for that purpose only, however,) public functionaries — liable to mandamus to compel them to pay over the money to the Bank, or as individuals to an action for money had and received to the use of the Bank.
    Against this clear and obvious construction of the charter, his Honor Judge O’Neall, in contravention of the rule that implication ceases where there is an express grant- — of the maxim “ ex-pressio unius, exclusio alterius ’’ — had implied the power of apportionment, or division and reduction pro rata of the capital stock among the subscribers, in the Commissioners — thus divesting the “ body corporate” of a right and power, expressly conferred upon them, and transferring it to the Commissioners.
    The following was the process of reaching this strange result: By the 1st section of the Act under consideration, the charter of the Planters and Mechanics’ Bank was renewed for the term of twenty-five years, and certain regulations and restrictions were enacted and applied to that Bank. The charter of the Union Bank, and of the Commercial Bank of Columbia, were also renewed, for the same term, with the same privileges, and subject to the same “regulations and restrictions, as are herein provided in relation to the Planters and Mechanics’ Bank.” Eight new banks were then chartered, and, among them, “ The People’s Bankand of all of them it was provided as follows: “ Which said Banks shall have and possess the same rights and privileges, and be subject to the same duties, liabilities, obligations, regulations and restrictions herein provided for the said Planters and Mechanics’ Bank, and Union Bank and Commer-cialBank;” and that the capital stock of each should be divided into shares of $25 each.
    The charters of the Planters and Mechanics’ Bank, the Union Bank, and the Commercial Bank of Columbia, conflict or differ, in several particulars, and, among other things, in reference to the scale of voting; (and his Honor erroneously assumed that the People’s Bank had adopted the scale of voting prescribed by the charter of the Planters and Mechanics’ Bank;) and the Act, incorporating the Planters and Mechanics’ Bank, in reference to the Commissioners of that Bank, after appointing Commissioners for Charleston and other places, prescribed as follows :
    “And the above named Commissioners [for other places] shall, on the first Monday in March next, forward to the Commissioners in Charleston a correct list of the shares subscribed, with the money paid on such shares at the time of subscribing, for the purpose of apportioning the same. The Commissioners in Charleston shall then forward to the Commissioners [mother places] a scale of the said apportionment, and shall then give at least one month’s notice of their intention to proceed to the election of thirteen Directors, from among the stockholders; and that the Directors, so first chosen, and all persons then being; or who hereafter may become stockholders in the said company, be and the same are hereby incorporated and held, deemed and taken, as a body politic and corporate, by the name and style of the Planters and Mechanics’ Bank of South-Carolina.” 8 Stat. 18.
    From these legislative provisions and the assumed Act of the People’s Bank, as to the scale of voting, his Honor, Judge O’Neall, implied, 1st. That the charter of the Planters and Mechanics’ Bank, where not altered by the Act of 1852, was to be considered, or supposed, as the charter of the People’s Bank. 2d. That the charter of the Planters and Mechanics’ Bank having given the power of apportioning the stock, among the subscribers, to the Commissioners of that bank, in Charleston, exclusively of the country Commissioners, the same power was to be considered or supposed to be vested in the Charleston Commissioners of the People’s Bank.
    To both of these unnecessary implications several conclusive answers might be given.
    1. Both implications were against the express language of the Act of 1852, chartering the People’s Bank, and in so many words conferring the power of apportionment on the stockholders, as “a body corporate,” and not on the Commissioners.
    2. There was nothing, in the Act of 1852, to countenance the idea that the charter of the Planters and Mechanics’ Bank was to be made, exclusively, the charter of the People’s Bank; but, on the contrary, the Act plainly conferred on the People’s Bank “ the same rights and privileges,” and subjected them “ to the same duties, liabilities, obligations, regulations and restrictions,” as were therein provided “ for the said Planters and Mechanics’ Bank, and Union Bank, and Commercial Bank” of Columbia; and, if there were any conflict in these rights and privileges, duties, <fcc., the People’s Bank were clearly entitled to an option, and that option, exercised, in any one case of conflict, between the respective charters of the three old banks, could not possibly be extended beyond the particular case.
    3. “ The rights and privileges, duties, &c.” referred to in the Act of 1852, were conferred and imposed, not on the Commissioners of the respective new banks, but on their respective stockholders, as bodies corporate.
    
    The clause in the Act incorporating the Planters and Mechanics’ Bank was no part of the charter of that bank. The Commissioners were public functionaries, (not officers of the bank,) appointed by the Legislature, to launch the bank into existence, and enable it to accept the charter — and, having done this office, they were functi officio. They were only appointed pro hac vice, and with the performance of their functions their existence ceased. The provisions which constitute the charter of the Bank are continuing and still subsisting provisions, and do not include the mere instrumentality which called the bank into being, or set it in operation.
    
      The reasoning of Judge Frost, on this point, was clear, con-convincing and conclusive. It was as follows:
    “ The Commissioners cannot derive any power, under that provision of the charter, which declares that “ the said banks shall have and possess the same privileges, and shall be subject to the same duties, liabilities, obligations, regulations and restrictions, herein provided, for the Planters and Mechanics’ Bank, and Union and Commercial Banks.” This clause clearly refers to the restrictions, regulations, &c., to be subject to the Bank Act of 1840, to be liable to taxation, &c., which, by the first section of the Act, were imposed on the Planters and Mechanics’ Bank, and by the seventh section were imposed on the Union and Commercial Banks, in precisely the same terms as in the eighth section they are imposed on the eight new banks. Besides, the privileges, &c., of the Planters and Mechanics’ Bank are granted and imposed on the new banks, and not on the Commissioners. Nor can the Commissioners derive any power from that clause of the ninth section, which declares that, oh the first meeting of the subscribers they shall be and “ become a body corporate, and have the same privileges and rights as the banks whose charters are renewed.” Whatever rights and powers may be conferred by this clause, must be conferred on the body corporate of the People’s Bank, for they are the same which the renewed banks possessed. The Commissioners, under this grant, would take banking privileges.”
    “ It is needless to pursue this subject further. The terms of the charter, which confer on the corporation the power “ to make a division of the capital stock, as aforesaid,” are too clear and explicit to permit, by any implication, a transfer, to the Commissioners, of the power of the corporation to make an apportionment of the stock. The Commissioners have fulfilled their functions, and their agency, as Commissioners, has ceased and determined. Their agency was employed to give existence to the Bank, by receiving the required subscription of the capital. The stock has been subscribed; the subscribers have held a meeting, under the call of the Comptroller-General, and ‘thereupon they became a body corporate.’ ”
    
      The implication of Judge O’Neall, if legitimately pushed to its full extent, would confer on the Commissioners of the People’s Bank not only the power to apportion the stock, but the power also to elect the first Directors of the Bank. For, whatever the historical proceedings may have been, under the charter of the Planters and Mechanics’ Bank, that instrument is so worded as to lead to the inference that the first election of Directors was to be made by the Commissioners, in Charleston. After appointing Commissioners to open subscriptions in Charleston, Georgetown, Beaufort, Columbia and Camden, it says, (sec. 1,) “And the above-named Commissioners, for Georgetown, &c., shall, on the first Monday in March next, forward to the above-named Commissioners in Charleston a correct list of the shares subscribed, with the money paid on such shares, at the time of subscribing, for the purpose of apportioning the same. The said Commissioners in Charleston shall then forward to the Commissioners in Georgetown, &c., a scale of the said apportionment, and shall then give at least one month’s notice of their intention to proceed to the election of thirteen Directors, from among the stockholders. And the Directors, so first chosen, and all persons then being, or who hereafter may become stockholders in said Company, shall be, and they are hereby incorporated and held, deemed and taken, as a body politic and corporate, by the name and style of “ The Planters and Mechanics’ Bank of South-Carolina.” The Commissioners were to give notice of their intention to proceed to the election of Directors, from among the stockholders, and it would, therefore, seem that they, the Commissioners, were to make the first election, from among the stockholders, and it was only on such first election that the Directors and the then and future stockholders were to become a body politic and corporate.
    The 3d section seems to regulate future elections, and directs “ that there shall be an election on the first Monday in May, in each year, by the said corporation, of thirteen Directors, who shall be chosen by the stockholders, or their proxies, from among themselves, and by a plurality of votes actually given.” The first election of Directors was, then, to be made by the Commissioners, from among the stockholders, and the future elections, by the stockholders from among themselves.
    
    If this construction be correct, then his Honor Judge O’Neall’s first implication, from the provisions of the Planters and Mechanics’ Bank charter, stops short of its full extent, and he must give the Commissioners of the People’s Bank as well the power to elect the first Directors, as to apportion the stock !
    7. Judge O’Neall’s second implication conferred the power of apportionment on the Charleston Commissioners, exclusively of the country Commissioners; whereas, by the Act of 1852, whatever powers are conferred on the Commissioners are expressly and impliedly conferred on them as a whole. And this led to another fatal objection to the application lor a mandamus. The rule asked for a mandamus to the Charleston Commissioners only; and, as the mandamus must necessarily follow the rule, against the Charleston Commissioners only could it issue. But another rule of the law of mandamus was that the application for the rule should be made against all those, if more than one, whose duty it was to execute the writ, if it should ultimately issue. Tapping on Mand. 290, (66 Law Lib. 339.) See also Geter vs. Commissioners Tobacco Inspection, (IBay, 348.). Here then, was another conclusive answer to the application of relators. The duties imposed by the Act, were imposed on all the Commissioners, and the mandamus must go to all or none'.
    8. Mr. Yeadon then proceeded to show that nothing in support of the rule could be made of the fact that the Commissioners had originally and actually apportioned the stock. It was clear, they did so without authority. The “ body corporate,” however, which was expressly vested with the power of apportionment, had ratified and adopted the scale of apportionment made by the' Commissioners, and thus, and thus alone, had given it legality and validity. The Commissioners acted as mere agents, anticipating their principals, who, subsequently, ratified their acts; and the principals, not the agents, are, if any, the respohsible parties.
    
      9. He next undertook to show the Commissioners had acted strictly according to the Act of 1852, and in compliance with the written advice of the learned counsel, (Mr. Petigru,) who now arraigned them for misconduct; and that they had, therefore, violated no public duty or private right, so as to make them liable to the criminal proceeding, or process, of mandamus, which might ultimately lead to their incarceration.
    1. He denied that they had been invested, by the Act of 1852, with any power, as decided by Judge O’Neall, (another implication, by the way,) to question subscribers under power of attorney, or other written legal authority, in the names of others, as to the iona fides of their subscriptions, and to reject the subscriptions of those refusing to answer. It might be admitted that, on arriving lawfully, either by the voluntary answer of the person questioned or otherwise, at the knowledge of the mala fides of an intended subscription, they had the implied right and power, and it was their implied duty to reject it. But he denied that they had the right to exercise inquisitorial power in invitum, and to reject subscriptions, on refusal to answer. At first, they did exercise the right of inquisition, and it was acquiesced in by several persons, whose subscriptions were rejected. At length, however, a wealthy, distinguished and influential gentleman, (H. W. Conner, Esq.,) the then President of the South-Carolina Railroad Company, (and understood to be one of the defeated party in the subsequent election for Directors,) appeared on the scene, with a considerable list of powers of attorney, and, on being questioned, he very properly took the position that the Commissioners had no right to question him ; that, having presented his written authority, to question him as to its Iona fides was impertinent and insulting. And so it was ; it was an imputation of violation of the law of the State — nay, of fraud — and was, of course, impertinence and insult, unless done under warrant of law. The Commissioners then re-considered their original determination, and, with the exception of one, (Col. Lehre,) acquiesced in Mr. Conner’s view of the matter, and thenceforward permitted him and all others, producing written or legal authority, to subscribe, unquestioned, in the names of others.
    The charter simply provided, at the end of the 9th section, as follows:
    “ And provided, further, that, in case of over-subscription to the stock of any of the aforesaid banks, the said subscription shall be reduced pro rata ; but no subscription of five shares, and under, shall be reduced, and it shall not be lawful for persons to subscribe for shares, in the names of other persons
    
    In this clause, no power was expressly conferred on the Commissioners, either to put questions, or to reject on refusal to answer, and Mr. Y. denied that it could be implied.
    Inquisitorial power was one of too high and offensive a nature to be exercised without an express grant; any one, disposed to play the Torquemada of modern times, might rightfully be asked to show his authority. The same might also be said of the power to reject, on refusal to answer.' This was the test; suppose Mr. Conner (as was, doubtless, the case) to have had bona fide powers of attorney, would his mere refusal to answer, as to their bonafides, the Commissioners showing no express authority for the inquiry, have warranted them in rejecting his subscription ? On the contrary, they would have been liable to an action for damages, for denying him the right, and even to a mandamus to compel them to allow it.
    What, then, was the use of the legislative inhibition of mala fide subscriptions, in the names of other persons ? Where the illegality of the subscription was not disclosed, by the subscriber, or was not proved, or known to the Commissioners, by other satisfactory evidence, it amounted simply to the legislative declaration of a rule, for the government of the citizen, obligatory on his good faith, honor and patriotism, but without either legal penalty or sanction, and without any power in the Commissioners to enforce it by inquisition.
    If the Legislature had designed to arm the Commissioners with power, they would have done as they did in the case of the Bank of Georgetown, and several other banks, viz: require an oath as to the bona fides of the subscription. The charter of the Bank of Georgetown says: “ And, provided, also, that each subscriber shall declare, on oath, that the stock for which he has subscribed is his own bona fide property; or, where subscriptions are made by an agent or guardian, such agent or guardian shall declare, on oath, that such stock, to the best of his knowledge and belief, is actually the property of such person, in whose name and for whose benefit such stock is subscribed.” 8 Stat. 91.
    • But the charter of the People’s Bank neither authorized an oath, nor a pledge of conscience or honor, to be exacted by the Commissioners, and they might just as well have implied a right to make an inquisition on oath, as on veracity or honor.
    2. He denied that subscriptions, such as were made by Mr. Cameron, one of the Commissioners, were within the prohibition of the charter — subscriptions, in the names of others, to whom he had advanced the money, to pay the first instalment, on an agreement to share the profit, on a sale of the stock above par — any more than if he had out and out presented his principals with the subscription instalment. This was the only way in which the poor, who had rich friends, could avail themselves of the benefit of an open charter. Every one had a right to subscribe, even with borrowed money, and to sell the stock, either for his own exclusive benefit, or for division of profit between himself and the lender, pledging the script, in the mean time, if necessary, as security. The object of the law was not to prohibit such real transactions, but the fictitious subscriptions, often in fictitious names, which attended the institution of the Bank of Charleston.
    3. He insisted that the Commissioners had done their duty, not only according to their sense of right, but in strict conformity with the written advice of their legal adviser, the eminent counsel, (Mr. Petigru,) who was now, professionally, their prosecutor. In their anxiety to be right, they asked his written opinion, on their duties, as Commissioners, under the Act of 1862, and, among other things, for a construction of the clause, declaring “ it shall not be lawful for any person to subscribe for shares, in the names of other persons.” The learned counsel had demanded the reading of his opinion and instruction to the Commissioners, on this point, and, on its being produced and read, the natural exclamation was, “0 that mine adversary would write a book !” It informed the Commissioners that the clause was not to be literally interpreted, and that it “ did not prevent a person from subscribing by attorney, nor preclude trustees or executors from the benefit of the charterand went on thus:
    “ He who presents himself as the attorney or agent of another person, should be required to produce written authority for so doing ; any written evidence that the party is authorized to subscribe on account of the principal, and with his money, is sufficient. In such case, the agent is not subscribing in the name of another person, but the principal subscribes in his own name, by his agent; and it does not appear that the Act requires all subscriptions to be made in person, but the certificate must be given in the name of the principal, and not in the name of the agent. If a person proposes to subscribe, as trustee, he should produce the deed appointing him, and declaring the trust; if as guardian, he should produce his letters of guardianship ; if as executor or administrator, his letters testamentary, or letters of administration, or the certificate of the Ordinary.”
    And in this interpretation his Honor Judge O’Neall had concurred. But the learned counsel volunteered not a word on the point so much mooted in the sequel, and the cause of the present controversy, whether the Commissioners had inquisitorial power, and a right to reject the subscriptions of those refusing to answer — to apply the peine forte et dure to those standing mute. The Commissioners had employed a skilful and renowned pilot, to aid them in the navigation of a difficult sea, and, if they had run upon a rock, or had got amidst shoals and breakers, it was because the modern Palinurus, true to his classical prototype, had slumbered at the helm.
    The advice of their counsel had been strictly followed by the Commissioners; they had admitted no subscriptions, in the names of others, but on the production of powers of attorney, or other legal authority — while it is in evidence that the Commissioners of the Farmers’ and Exchange Bank (the subscriptions to which were simultaneously in progress) had admitted subscriptions, in the names of others, not only without question, but without exacting the production of written authority— and yet the latter Commissioners had not been arraigned for breach of duty, and the latter Bank was suffered to go immediately into operation. The question that subsequently arose, as to the right of inquisition, was one on which the respondents were inopes consilii, and had decided and acted for themselves, according to their sense of. right and propriety, and they were, therefore, not fit subjects for a mandamus and its penal consequences. The respondent, (Mr. Prevost,) whom Mr. Y. particularly represented, was, he said, (as were a majority of the others,) entirely innocent of, and had no part in, the alleged illegal subscriptions. Mr. Prevost was a worthy, upright, and enterprising citizen, who had earned his fortune and honorable position in the community, by honest industry and sagacious manage, ment; the office or function of Commissioner was conferred on him unsought, and accepted by him, only under a sense of public duty, and he had only subscribed for five shares, in his own name, and for none in the name of any other person. Col. Lehre, too, was in a like category, and was even a dissentient, (the sole one) from the majority, as to the right of inquisition although he had since, it was believed, changed his original opinion on that point. Surely such men, thus acting, could not properly be made the subjects, perhaps the prisoners of mánda-mus. If the mandamus was grantable, it should issue against the corporation, for, as already urged and shown, it was only as agents of the corporation, that the Commissioners had refunded the surplus subscriptions.
    10. Next, mandamus was not the proper remedy, in matters, either of discretion or conscience. If the Commissioners should be supposed to have had the right and power of apportionment, it was a duty involving discretion, judgment, judicial action, viz : the power to construe the charter. In this point of view, they may be regarded as an inferior tribunal or jurisdiction, and if so, they have given judgment according to the lights before them, and they cannot be compelled, by mandamus, to exercise discretion, in any given shape, or in any particular way ; that would be to rob them of their discretion, and convert them into mere ministerial officers or automata. In Ex parte Morgan, 2 Chitty, 250, 18 Eng. C. L. Rep. 324, the Court of K. B. refused to interfere, by mandamus, to compel a court of inferior jurisdiction to grant a new trial in a cause before it. “Per cu-riam. We may command the Judge of an inferior court to give judgment, in a matter fit and proper for his cognizance ; but we cannot, in this matter, review his proceedings, or try, upon affidavit, any alleged irregularity in his judgment. It then is an erroneous judgment given, and a writ of error will rectify it, if error lies, but we cannot tell the Judge what he is to do. We can command him to give judgment, but we cannot interfere to regulate the practice of an inferior court, because every inferior court is the proper judge of its own practice.”
    Again, a mandamus will not be granted, to3 compel or interfere with the performance of a conscientious duty. In Rex vs. The Commissioners of Flockwood Inclosure, (Ibid. 252-325,) Lord Ellenborough said: “ Have you any case that shows that this Court will grant a mandamus, where a conscientious duty is left to the Commissioners ? It would be subjecting the consciences of the Commissioners to a mandamus.”
    
    The Commissioners of the People’s Bank performed their duty conscientiously, and were studious to do so; they sought the advice of eminent counsel, and followed his advice to the letter. On the difficult question, as to inquisitorial power, which subsequently arose, they acted, in the absence of legal advice, in accordance with their best judgment and their sense of right; and neither their discretion nor their consciences can be ruled by a mandamus. It may be added that, if the Commissioners had the power to apportion the stock, they have actually ap
      
      portioned, but where is their power to re-apportion 7 Their function was performed, and they ceased to exist as public functionaries ; and their act of apportionment, so far as they were concerned, \yas irrevocable.
    Í1. Mr. Yeadon next went on to show that the duty demanded of the respondents was impracticable; that it was wholly out of their power to re-apportion the stock. The difficulties in their way were insuperable. They had, ftnder the authority of the “ body corporate,” paid back the surplus subscriptions to numerous subscribers. It was in proof that the stock had depreciated, and still was considerably below par. Their difficulties were two-fold.
    1. They knew not what subscriptions, under the powers of attorney, were bona fide, and what were not bona fide — and they were without compulsory or adequate means to ascertain the fact. They could only effect that end, by purging the consciences of individuals or examining witnesses ; and they had no authority to do the one or the other. Neither had they the high power and searching process of a Court of Equity, to purge the conscience, nor the power and process of subpoena to summon and compel the attendance of witnesses — nor even the power to administer an oath, or even to compel answers, without oath, from either parties or witnesses — and this Court could not confer such powers on them. They may call spirits from the vasty deep, but will they come ? They were, therefore, utterly powerless and helpless — and it would be vain, fruitless and nugatory to direct a mandamus to them — except it be to effect their imprisonment by way of punishment. Even Col.' Lehre, in his return to the rule, had, with his usual good sense, alleged the utter impossibility of complying with the mandate of the Court. He modestly, but pointedly says : “ If the Court, however, shall come to the latter conclusion — that is, that the subscriptions are objectionable as illegal, then I respectfully submit, whether, under the circumstances of the case, it is possible to re-apportion the stock ? The subscribers are scattered over the city and State, and the Commissioners have no power to bring them before them, that they may determine the validity of their several subscriptions. Without such power, it appears to me the re-apportionment of the stock would be impracticable.”
    Besides, it was also in evidence that a large portion of the stock had passed, from original hands, into those of purchasers, and many of them Iona fide purchasers for valuable consideration, without notice, none of whom were parties to this proceeding, and as to whom there could not be any remedy.
    2. Even if the Commissioners could ascertain the facts, so as to come to a satisfactory decision as to the Ionafides or mala fides of the exceptionable subscriptions, they are wholly without power to compel parties, to whom the corporation has voluntarily refunded surplus subscriptions, to return the money and take stock at par, and especially a depreciated stock, which they can buy in the market greatly below par. Besides, many of the original subscribers reside out of the State, some are insolvent, others are dead — and the obstacles to efficient action are numerous and insurmountable.
    No principle of mandamus was better settled than that impossibility of performance is a good return to a writ of mandamus; and that although the impossibility has supervened the issuing of the writ. The first mandamus is always si poteris.
    
    The mandatory clause of the writ commands, in the alternative, that is, either to perform the act or duty therein stated, or to show cause why, &c. Tapping on Mandamus, 326, 346. (66 Law Library, 371,389.) A return which shows a legal impossibility to perform what the writ commands is good. Ibid. 359. (66 Law Library, 400.) If, however, the return attempt to show an incapacity to obey, by reason of the change of circumstances, it must also show that there was no fraud or stratagem on the part of defendant. Ibid. 360. (66 Law Library, 401.) Impossibility of performance, then, being a. good return to a mandamus si poteris, no peremptory mandamus could issue in such a case; and, surely, if the impossibility appear on the return to the rule, even the mandamus si poteris should not be granted. The Court will not issue a mandamus for punishment merely, when no useful purpose or object can be answered. So the Court will refuse to issue the peremptory writ, (for even that is matter of discretion,) in any case, in which it is clear the writ, if issued, cannot have any useful effect. Ibid. 402. (66 Law Library, 439.) So the Court will refuse a mandamus if it will ultimately fail, as where the commission of the public functionary expired four days after the delivery of the first writ of mandamus, and the defendants had no time, &c., the Court, on allowing the return, said, “ that a peremptory mandamus could not be granted, it appearing there was no power in any body to execute the writ.” Ibid. 15, 16. (66 Law Library, 68.) “The mandatory clause usually does, and properly should, always contain an alternative sentence, which was formally, when the writs were in Latin, expressed thus: “Si ita est,” or “ si vobis constare poterit,v or “vel causam nobis signijices ;” the legal signification of which sentence is, that the mandatory part is to be observed, only if it can be legally commanded.” Ibid. 336. (66 Law Library, 47.) In Regina vs. London and NorthWestern Railway Company, (6 Eng. Law and Eq. Rep. 223,) Lord Campbell said : “ In this case we are of opinion that the defendants are entitled to our judgment. The objection that the power of the Company for the compulsory purchase of lands had expired before the writ of mandamus issued, or was applied for seems to us to be clearly decisive. The power effectually to obey the command, in the writ, having expired in July, ought we, in the Glueen’s name, to have given the command in April, 18501 On full examination, we think not. Generally, the writ suggests facts, showing the obligation, and the possibility of performance.”
    12. Mr. Yeadon’s next position was, that even if the relators had been originally entitled to mandamus for a general re-apportionment of stock, and the allotment of a larger proportion to them, they had released or forfeited the right by their own acts — acts of acquiescence in the alleged illegal apportionment, and that to the misleading and prejudice of innocent persons and bona fide purchasers, for valuable consideration, without notice. The learned counsel, who opened the argument for the prosecution, was in error in his attempted limitation of the principle, in endeavoring to confine it to acts of guilty participation in what he styled the vice of the case — i. e., the unlawful subscription, in the name of others, for one’s own benefit. He had shown no authority for such a limitation; and the great and leading Pennsylvania case of the President and Directors of the Kishacoquillas and Centre Town Turnpike Company vs. James McConaby, 16 Sergeant and Rawle’s Rep., 142, conclusively established the doctrine to be, as he, Mr. Y. had stated it. The case ran, in principle and in facts, almost quatuor pedibus, on “ all fours,” with that before the Court, and presented some very curious coincidences with the latter.
    There the Commissioners were authorized to open a subscription for six hundred shares, and on filling them the State of Pennsylvania was herself to subscribe a large sum of money to the enterprise. Three hundred shares were wanting to complete the subscription, and the Commissioners filled up the whole number by further subscriptions, in fictitious names, and the subscribers thus fraudulently secured the charter and obtained the money of the State, organized the company and proceeded to build the road. One James McConaby, a subscr at the election for officers, and did other acts in a$ée; the charter, probably knowing of the fraud. Hemri^Yrefused to pay up his subscription, and was sued for it by tqAcpm| He succeeded before the Circuit Court, but, on appjjaí^fte Circuit decision was reversed, and the Appeal Court he had accepted the charter, acted on it, was one oiNmeseven in the charter, advertised the election for managers, anavote by proxy, he ought not to be heard against the payment of his subscription — that it did not lie in his mouth to object, nor would his ignorance of the fraud, if such were possibly the case, avail him, “ because he, by his own public acts, had put the charter into motion, and had encouraged the State to pay for four hundred shares and the individual subscribers to pay their subscriptions” — that he had been probably an actor in the scene of fraudulent deception, and then sought to avail himself of it to the injury of the innocent, and that he, who assisted in putting the charter into action, could not be permitted to say to those who had innocently advanced their money, and completed the road, that the charter had been obtained by fraud on the subscribers and on the State. “ He should have informed himself of the fraud, and declined to act.” “His ignorance of it could not aid him; but it was his duty to know, and the Court would not protect him, particularly as his course was, in its consequences, so injurious to others.”
    The Appeal Court added that it was not “ to scrutinize the secret motives of defendant, but it was candidly admitted by his counsel, in the argument, that it arose from some disappointment in the election of managers and officers of the institution; as it was likewise candidly admitted and proved, by plaintiffs themselves, that three hundred subscriptions were fictitious, which, however little worthy of commendation, appears not to have been clandestine but notorious; not confined to this corporation, but practised generally.” The Court, finally, gave judgment in reversal of the finding below, holding that the de-fence set up, (that of illegal and fraudulent subscriptions,) could not be taken, “until judgment on scire facias, to declare the charter forfeited, or writ of quo warranto, at the suit of the State, in which the State must be a party to the judgment for seizure of the franchise,” adding that “ there was no instance of calling in question the right of a corporation, for the purpose of declaring its charter void, but at the instance of the State and on behalf of the government, and never on the relation of an individual.”
    That case went not on the principle that the defendant had participated in the vice of the proceeding, i. e., in the fraudulent subscription of 300 shares, (although the probability of his guilt in that matter was alluded to by the Court,) but on the principle that, knowing the. alleged illegality and fraud, he had assisted in putting the charter into motion, encouraged the State to pay for 400 shares, and the individual subscribers to pay their subscription, and voted for managers and officers — and he who had thus acted should not be allowed, because disappointed in the result of the election, to dispute the validity of the charter to the injury of the innocent. So the chief relator, in the case before the Court, and all his confederates, knowing the alleged illegality of the apportionment, yet assisted in putting the charter of the People’s Bank in motion, and subsequently acquiesced in the apportionment, by voluntarily receiving back their surplus subscriptions, and voting at the election for President and Directors, to the misleading of innocent persons and purchasers; and they should not be suffered, in this form of proceeding, and by this high criminal process, because defeated in the election, to dispute the legality of an organization and of acts, in which they had participated, to the prejudice and injury of the innocent.
    The coincidences, too, in the Pennsylvania and South-Carolina cases were remarkable. In both cases the alleged illegality was not clandestine, but notorious; in both cases the parties complaining were participators in the act complained of; in both cases they had voted in the election for officers, and were disappointed in the result; and, in both cases, the alleged illegal subscriptions were not confined to the particular corporation, but were practised generally. If rumor is to be credited, Mr. Dulin played the same game at Columbia, and was compelled to a compromise. Yet he and his confederates were clamoring for justice, and assumed to be the champions of pure morals! They should have a care, for justice to some men would prove their execution. Let them, then, at least, be amerced pro falso clamore.
    
    13. It had been already shown that a mandamus, at the relation of the citizen, was purely matter of judicial discretion— in the issuing of the rule to show cause, the granting of the mandamus si poteris, and even in the final award of the peremptory mandamus, presenting the alternatives of obedience or the jail. But the discretion, thus lodged in the judicial tribunals, was not to be exercised arbitrarily or capriciously; but it was a sound discretion, tb be applied on principle, and according to established rules of propriety, challenging general assent and approbation. It is not to emanate from the ipse dixit — the sic volo, sicjubeo of the Judge. In Tapping, 287, 288, (66 Law Lib. 33,) it is laid down that, in matters of a public nature or affecting the public, a rule for a mandamus is ex debito justitice; but, where the right, or power, is of a private nature, as in the case of many offices, &c., in which the publicare not primarily concerned, it is discretionary in the Court, in the first instance, either to grant or refuse the application; or to grant a rule to show cause why it [the mandamusJ should not issue — where, however, the granting of the application is in the discretion of the Court, such discretion is and must be governed by certain principles, i. e. agreeably to the justice of the case, and as the interests of the parties seem in its judgment to require; thus, as a general rule, the Court will always refuse the writ, unless the defendant have acted wrongly.
    
    The same principle was also recognized and enforced, by his Honor Judge O’Neall, in the case of the State vs. Schnierle, (5 Rich. 299,) in reference to a rule for a quo warranto, on the application of individuals, to try the validity of the defendant’s election as Mayor of Charleston ; (and applications for a mandamus stand, in point of discretion, on the same footing with those for a quo warranto.) His Honor there said “ that the granting or refusing of the rule is matter, addressed to the discretion of the Judge, is not denied. It is said that it is a legal discretion — that I admit; but still a legal discretion is to be exercised, by inquiring, is this investigation to benefit the people? Will it have any practical results, which cannot be obtained in the usual manner, the ballot box ? These were all appealed to, in the discretion exercised. So, too, the public convenience is another matter which ought to be looked to. This was also done in the judgment below ; legal discretion I understand to be the opposite of caprice. One rests upon reasons, the other upon the ‘ sic jubeo alone.” The rule was accordingly refused, on the grounds, among others, that the trial of the case, involving the investigation, before a jury, of the validity of some seventy-nine votes, would probably consume the whole of the then ensuing term of the Court of Common Pleas, and that a new election for Mayor would be held before the case could be finally decided.
    Let those principles he applied to the case before the Court, and the mandamus must be denied. If the object, really sought by the Relators, were more stock, they could go into the market and buy it, in any reasonable quantity, below par — if their indirect object was a new election for President and Directors, a new election would be held, under the charter, long before the cause could be finally decided. For, should the application of the Relators be granted, the litigation would not end here. The writ of mandamus, if granted, may be met by a motion to quash for defect in form, by a special return for defect in form or substance, by a return in the nature of a demurrer, or by a traverse, taking issue on any of the material facts, necessary to be alleged in the writ, such as the legal right of the Relators, the lonafides of the numerous subscriptions, challenged as illegal, or even the previous demand and refusal.
    The writ of mandamus should contain allegations of all such facts as are necessary to show that the prosecutor is legally entitled to the relief he prays, otherwise it is liable to be quashed. It must aver the right or title of the Relator, the power or duty of the defendant, and a demand or refusal, or an equivalent, and the absence of a specific legal remedy. (Tapping, 320-322-323, 66 Law Lib. 366-367-368.)
    “As the prosecutor is supposed to know his own title best, so he is bound by the terms in which he alleges it; therefore, if the title, as he states it, be denied by the return, it is enough ; which doctrine is’ precisely the same as one which obtains, as to traverses in personal actions, namely, that “ a party may, in general, traverse a material allegation of title or estate, to the extent to which it is alleged, though it need not have been alleged to that extent.”
    
      “As to the substance of a return, by way of traverse, it is a rule, that every distinct and material allegation, contained in the writ, must, if it be intended to contradict it, be traversed.” {Ibid. 3S4-349, 66 Law Lib. 391.)
    It was obvious, then, that even the success of the Relators, in the present application, would be attended with no benefit to the public, or practical good effect to themselves, and would only result in protracted litigation and delays, that would utterly defeat the organization of the new Bank, to the injury of all concerned, and to the defeat of the object of the Legislature, in giving additional banking capital to Charleston. The Relators, then, could only be actuated by disappointed malice and revenge ; and every public and private consideration combined to influence the Court, in the exercise of a sound discretion, to deny an application, originating in, or continued with, such motives, and fraught with such evil consequences, private and public. His Honor Judge O’Neall, in the exercise of Ais discretion, had ordered the rule to show cause, before the Court of Sessions. The respondents had acquiesced, and had shown cause, before Judge Frost, in that Court. Judge Frost had heard the cause; and, in the exercise of his discretion, had pronounced thecause shown amply sufficient, in both law and fact— and this Court should not interfere with that discretion, unless convinced it was capricious or unsound.
    14. Mr. Y. urged, to the Court, that they should not allow the blending of the two applications, for the mandamus and the quo warranto, to prejudice the respondents to the former. There was no natural connexion between them. At Columbia, the counsel for the two sets of respondents had consented that the two cases should be argued together before Judge O’Neall, in the hope and expectation that they would have gone up together before this Court, then in session at that place, for immediate and final adjudication : in this they had been disappointed. On Circuit, before Judge Frost, they had endeavored to sever the cases, but the tactics of the enemy had again prevailed. The objects of the two applications were entirely different; that of the one was to obtain additional stock ; that of the other, to set aside the election for directors. Either might be granted, and the other refused; and it by no means followed, as stated by Judge O’Neall, that the granting oí the quo war-ranto resulted, as a corollary from the award of the mandamus. The Court may order the mandamus to the Commissioners, if they shall find warrant for so doing, and yet deny the quo war-ranto, on many of the grounds, so ably and eloquently urged, by the counsel for the President and Directors, (A. G. Magrath, Esq.,) such as the want of proof that there were bad votes enough to vitiate the election, or that the title of the electors could not be impeached in a collateral way, or, as ruled in “ The State vs. Schnierle,” that a new election would come off before a final decision could be had in the cause. So, too, the mandamus might be refused, and yet the quo warranto granted, on the ground (were it tenable) that the oath, required by the charter of the Planters and Mechanics’ Bank, was not administered to voters at the election, for Directors of the People’s Bank.
    15. This led him, he said, to a further criticism or examination of Judge O’Neall’s decision. His Honor, it would be perceived, from reading his opinion, had been oppressed with a sense of difficulty and perplexity, at every step of his progress to the result at which he had arrived. He began with an acknowledgment that the law was a “ blind one” — and it must be confessed it was one of the most slovenly specimens of legislation that had ever emanated from our State Capitol. It was a statute, re-chartering three Banks, and creating eight new ones. “As might be expected,” said his Honor, “ in such a jumble, there is great difficulty in construction. Blind, however, as the law may be, I am compelled to endeavor to come to some conclusion, as near right as I can.” His Honor then remarked that “ a literal reading of the act will exclude any subscription, in the name of another person, whether by a bona fide power of attorney or not!” He ruled, however, that “ this was clearly not intended,” and that bona fide subscriptions, under such powers of attorney, for other persons, were not in violation of the law, but good and valid. Nest, he held that the Commissioners had the right to make inquiry, as to the bonafides of such subscriptions; that they were wrong in ruling otherwise, and, after enumerating sundry such subscriptions, in part proved, and in part only alleged, to have been not bona fide, he added : “ These facts make it plain to my mind that the law has been violated.” He further ruled that the Commissioners had the right to reject the subscriptions of every one, presenting powers of attorney, who either refused to answer, as to their bonafides, or avowed that they were for his own benefit. “Then,” said he, “ the great difficulty with me has been, to know how I was to reach and remedy this grievous error.” Then another and still greater perplexity embarrassed him :
    
      “ Can the present parties complaining make the question which they raise, and follow it up to the consummation which they desire, has been to me a cause of more perplexity than I usually encounter. That they have voted in the corporation, and received the excess of their subscriptions, is true. Ordinarily, this would be such a concession of a rightful corporation, that it could not be got over; yet, it seems Mr. Dulin gave notice that he would object to any allotment, on shares subscribed under powers of attorney, in the name of other persons, for the use of the persons so subscribing; and that he would institute legal proceedings to correct the same. There is no doubt that, in a subsequent meeting of the stockholders, he stated his willingness [and also intimated and implied the same in his notice to the Commissioners] to abide by the decision of the majority. This, however, cannot bind him — nor do I know that the other parties complaining are concluded from agitating the very vital question of subscriptions, made contrary to law, and endeavoring to save the charter, by pruning from it such an objection. I have, therefore, after much reflection, come slowly to the conclusion, that I must entertain their complaint.”
    The accumulation of his difficulties and perplexities still continued: “ It is next to be inquired, whether the Commissioners were bound, before apportioning the stock, to exclude the subscriptions, contrary to law? Then, again, arises a strange difficulty, in the fact, that there is no provision, in the Act of the last session, authorizing them to do anything about the apportionment of the stock.”
    This was a strange difficulty indeed: one would have supposed it insuperable — insurmountable—but hisHonorsurmount-ed it. And how ? By two implications against an express grant, and by two suppositions!! This would appear by the following passage :
    “ The literal reading of the Act is, that as soon as the subscription is filled, the Comptroller General is to notify the subscribers to meet and divide the capital stock into shares of $25 each ; and, in case of over-subscription, the subscription shall be reduced pro rata, but no subscription of five shares, or under, shall be reduced. According to this, there would be no scale of voting; every share subscribed would be entitled to one vote. Indeed, it would be a sort of mass meeting, until the stock should be reduced and divided, and even then-each share would be entitled to one vote. The literal reading has been overcome only by construction. The charter of the People’s Bank declares it shall carry to the stockholders the “privileges and rights” of the Banks whose charters have been renewed. The stockholders adopted the scale of voting, given by the charter of the Planters and Mechanics’ Bank, — and hence, I suppose, it may be considered, by the law and their act, as their charter, when not altered by the Act of 1852. By the first section of the charter of that Bank, the power of apportioning the stock among the subscribers is given to the Commissioners to take subscriptions in Charleston, and hence, I suppose, it is given to the Commissioners here. Having come to this conclusion, I entertain no doubt that they ought to have excluded every share subscribed, under the powers of attorney, which have been drawn in question before me.”
    Then came the very climax of difficulty and perplexity:
    
      “ How can the Commissioners now re-apportion the stock, they having refunded to most of the subscribers the excess 1 
      
      There is great difficulty here. It must, however, be overcome. I see no other way, than to exclude the illegal subscriptions, ascertain the increase upon the bona fide shares, and notify the stockholders, entitled, to pay back the money received.”
    Having thus disposed of the Commissioners, his Honor de-spatched the President and Directors thus, as if there were a Siamese twin-ship between them: “ The next question is, as to the election of the President and Directors. That it is bad, if my previous views are right, is plain. They have been elected by illegal votes, and by an illegal corporation. For, until the stockholders are legally ascertained, all is wrong.”
    Thus, because a grievous error, in his Honor’s estimation, had been committed, and because it must be overcome, somehow or other, and because his Honor saw no other way out of his labyrinth of difficulty and perplexity, irrespective of public or private injury, or of the estoppel of the Relators by their own act, or of their highly objectionable motives, he would arm them with the high prerogative writs of mandamus and quo warranto! With all due deference, said Mr. Y., was there not somewhat of the sic volo, sicjubeo here?
    Another error of his Honor, respectfully urged Mr. Y., was the following: “ That the charter, by this violation of law, may be forfeited, if the Legislature think proper to order a scire fa-cias, is a consequence greatly to be feared.”
    But there was no earthly reason to apprehend such a result. In the first place, the irregularities of the Commissioners, (if any,) and especially their honest error, (if any,) in a doubtful matter, would not, in point of law, have subjected the charter to forfeiture, to the prejudice of innocent third persons. This was settled in the case of Kottman vs. Ayer, (3 Strob. 92,) and numerous other cases, viz : that the defacto principle will protect third persons from injury, by the irregularities or misconduct of public functionaries; e. g. that the requisition of an oath of office, from a magistrate, was only directory, and that a failure to take it shall work no prejudice where the rights of third persons are concerned.
    
      This principle had, too, the sanction of the learned counsel for the'relators, in his letter of instruction and counsel to the Commissioners. “ In Johnston vs. The S. W. R. R. Bank, (3 Strob. Ecp 263,) it was held,” said he, “ that the irregularities, committed by the Commissioners, for taking subscriptions, (which, in that case, amounted to an evasion of the charter,) did not vitiate the organization of the Bank.”
    Were the law even otherwise, there is no manner of danger that the Legislature would, in defeat of their own policy and that of the city of Charleston, resort to a scire facias, to prevent the additional Bank capital, so much required by the commercial wants of the times. They would no more do it than did the Legislature of Pennsylvania, in the Kishacoquillas case, where doubtless a highly useful public work was secured, although accomplished by a fraud on the State.
    16. Mr. Yeadon next asked the attention of the Court, to what he termed the statistics of the case. The Relators were but an inconsiderable fraction of the subscribers to the Bank, a lean and meagre minority, in numbers and in stock, seeking, without legal right or moral justification, and with selfish or malicious motives, to overrule and annul the action of a large and overwhelming majority, alike to the prejudice of private rights and the public weal. Thé whole number of shares was 40,000, and the number subscribed for by the relators was but 2,230 ; viz : Mr. Dulin, 2,000 ; Mr. Fleming, 10 ; Mr. Charles Witte, 100; Mr. Austin Canaday, 20 ; and Mr. Samuel McCaughrin, 100 ; so that, viewed by this scale, 2,230 shares were seeking to overrule 37,770 shares. By the apportionment, Mr. Dulin’s shares had been reduced to 1,166; Mr. Fleming’s to 6; Mr. Witte’s to 58; Mr. Canaday’s to 12 : and Mr. McCaughrin’s to 58 ; in all, 1,300: so that, viewed by this scale, 1,300 shares were warring against 38,700 shares. The amount, paid on each subscription, at $5 per share, was $200,000, of which the contents had paid the large sum of $188,850, and the non-contents, or mal-contents, the comparative pittance of $11,150; and, if the whole capital were paid in, the contents would represent the vast proportion of $>967,500, and the non-contents the comparatively trifling sum of $>32.500. Already, too, had this litigation locked up the large amount of money, paid in, so far as the subscribers were concerned, without interest, in the coffers of the Banks, in which it had been deposited ; and, if this litigation were to be protracted, the money would be impounded much longer, to the injury of all concerned. All these were matters well worthy the serious consideration of the Court, in an application, addressed, as the present one was, entirely to its discretion.
    17. Everything conspired to induce the Court to refuse its aid to the unrighteous proceeding of the Relators. They were themselves grievously in fault. They were violators of their own pledges; (the learned counsel for the Relators had endeavored to belittle, or excuse Mr. Dulin’s violated pledge, by styling it “a pollicitation,” but “a rose by any other name would smell as sweet,” and vice versa;) they had committed themselves and misled others by irrevocable acts; they had done, and were doing, much serious mischief, public and private ; they had, by this very proceeding, greatly depreciated the price and value of the stock, to the injury of widows, orphans, societies and others, who had subscribed for it; and their whole course was calculated to defeat the policy of the Legislature, in giving additional banking capital to Charleston, to meet the wants of her growing and expanding commerce. Yes, they had warred, and were still warring against the best interests of our city, the queen city of the South, by practically depriving her of, or delaying her in, the enjoyment of the new monied facilities, which the collective wisdom of the State had proffered her, for securing the enriching trade of the far and mighty West, now ready to be poured, in prodigal profusion, into her lap, through those railroad connections in which the whole State had embarked, and in which his Honor, Judge O’Nealu, himself had so zealously, honorably and successfully, applied his patriotic and untiring energies — and all for what ? That they may have a new election for President and Directors of the «People’s Bank, control its capital, monopolise its discounts, and dispense its patronage ; their leader, perhaps, to be crowned its money-king, and reign supreme over a pliant Board of Directors, themselves speeding on to riches, by warring, to the knife, against the interests of Charleston. There was a tide in the affairs of cities, as well as in the affairs of men, which, taken at the flood, leads on to fortune. Let, then, their Honors stay their hands, and not stretch them out in aid of those, who would wade to fortune, or to revenge, over a wide waste of public and private injury.
    McCready, for the Commissioners, contended (1) that demand and refusal were necessary, and none had been shown. The protest of Dulin was not a demand to apportion the stock, King vs. Brecknock, 3 Ad. & El. 221. (2) The rule does not show how the apportionment is to be made. It is wanting in certainty, Rex vs. Thetford, 8 East, 270; King vs. Pancrass, 3 Ad. & El 535. (3) The Commissioners, in taking subscriptions, were invested with a judicial discretion. They exercised it honestly. Have decided that the persons had the right to subscribe; and having so decided, there is an end of the matter so far as they are concerned. The Court cannot compel them to decide in any particular way. No power is given to the Commissioners to administer an oath, or examine the parties. All that they could do, and this they did, was to ascertain that the powers were genuine. Ex parte Becke, 3 B. & Ad. 704; Ex parte Morgan, 2 Chit. 250 ; Rex vs. London, 3 B. & Ad. 255 ; Rex vs. Elocktoood, 2 Chit. 251. (4) The Commissioners have no power under the charter to make an apportionment. That power is given expressly to the corporation. The subscribers when assembled, as a corporation, are “ to provide for the division of the capital stock.” Rex vs. Collector of Customs, 1 M. & S. 262. (5) The Relators, here, had acquiesced, and were precluded from questioning the validity of the proceedings. Ang. & A. on Corp. 708 ; 2 Wend. 256 ; lb. 264. (6) The surplus fund had been paid away, and the Commissioners had no power to recall it. Regina vs. The London and 
      
      Northwestern Railway Company, 6 Eng. L. & E. Rep. 220 ; Johnston vs. Bank, 3 Strob. Eq. 263. (7) But the parties had another remedy, and in such case mandamus will not be granted. King vs. Bank, Doug. 526 ; Shipley vs. Mechanics’ Bank, 10 Johns. R. 484 ; Queen vs. Pitt, 10 Ad. & El. 272; King vs. Bank, 2 B. & Al. 622.
    Campbell, for Directors.
    
      Petigru, in reply,
    cited King vs. Carmarthen, 2 Bur. 869 ; Rex vs. Dawes, 2 lb. 2120 ; Bul. N. P. 199; Bac. Abr. Mandamus, D.
    
      
      (a) 12 Stat. 212.
    
    
      
      (b) The following is a copy of the protest:
      I hereby notify you, that I object to the legality of the subscriptions made under powers of attorney for five shares each, on the ground that the said subscriptions were not made for the benefit of the subscribers, but for other parties; and I object to any allotment of shares on those subscriptions. It is my intention to adopt such legal measures as may be necessary to enforce my objection, and give you this notice not to pay over the monies whioh havo been received by you from subscribers, till the question has been, decided by the proper authority, or until after the meeting of the stockholders to-morrow.
      Tours, respectfully, R. Dulin.
      
      Charleston, 25th April, 1853.
    
    
      
      (c) The following is a copy of the resolution adopted by the meeting:
      
        Resolved, That this meeting fully approve of the course taken by the Commissioners in relation to subscriptions, and their apportionment of the stock, and that the thanks of the meeting be returned them.
    
    
      
      
        (a) This argument of Mr. Magrath, here printed, was made before his Honor, Judge O’Neajj., on the application for rules. It is substantially the same as that delivered in the Court of Appeals. R.
    
    
      
      
        Quern vs. Pitt, 10 Ad. & Ellis, 272, 37 Eng. C. L. R. 107. The Court refused a mandamus, because the Court of Chancery could compel the performance of -whatever was requisite, and was better able than tho C. of K. B. to regulate the rights of parties.
    
   The opinion of the Court was delivered by

Glover, J.

On the application of the Relators, a rule was granted against the Respondents, in the first case, to show cause why a mandamus should not issue, directing them to re-apportion the stock of the “ People’s Bank,” agreeably to the charter ; and against the Respondents, in the second case, to show cause “ why one or more information or informations, in the nature of a writ of quo warranto, should not be exhibited against them, for exercising the offices respectively of President and Directors of the People’s Bank, and the franchises of a corporation under that style and title.”

The returns of the Respondents to these rules were heard, at October Term, 1853, and the rules were discharged, and from that judgment the Relators have appealed to this Court.

The questions presented for consideration by the grounds of appeal, in both cases involve the construction of an Act, incorporating the People’s Bank of South-Caroliua,” with seven other Banks.

By the first section of the Act, (12 Stat. 212,) the charter of the “ Planters and Mechanics’ Bank” is renewed, and subsequent sections impose additional liabilities and obligations. The seventh section provides for the renewal of the charters of the Union Bank and the Commercial Bank of Columbia, “with the same rights, privileges and obligations, and subject to the same regulations and restrictions, as herein before provided, in relation to the Planters and Mechanics’ Bank.”

The People’s Bank of South-Carolina,” with seven other new Banks, is incorporated by the eighth section, which provides that said Banks shall have and possess the same rights and privileges, and be subject to the same duties, liabilities, obligations, regulations and restrictions herein provided, for the said Planters and Mechanics’ Bank and Union Bank and Commercial Bank.”

Sec. IX. “ The Comptroller General shall be authorized to appoint fit and proper persons as Commissioners, at Columbia and Charleston, or elsewhere, as he may decide, to open subscriptions, between the first day of April, and the first day of July next, to the capital stock of the eight Banks, respectively named in the foregoing section, and to require five dollars on each share from subscribers, in specie, or notes of specie-paying Banks of this State, and shall deposite the same in such Bank, as a majority of the subscribers shall designate, for the use of the respective Banks, on the first meeting of the subscribers. That, as soon as the subscription shall respectively be filled to the amount of the capital stock of each of the Banks respectively herein before named, it shall be the duty of the Comptroller General to notify said subscribers to meet, who shall thereupon become a body corporate, with the same privileges and rights as the Stockholders of the Banks whose charters are hereby renewed, and make all by-laws, not inconsistent with the laws of the land, to provide for the election of officers, the division of the capital stock as aforesaid, the payment of the subscriptions, and all arrangements to put into operation the charters hereby granted. Provided, That no one of the Banks hereby incorporated for the first time, shall issue any bill or note, or transact business, until satisfactory proof shall be given to the Comptroller General, that one-half of the capital stock of each Bank has been paid in, one moiety thereof, in gold or silver, and the other moiety in notes of specie-paying Banks. And, provided, further, That, in case of over-subscription to the stock of any of the foregoing Banks, the said subscription shall be reduced pro rata; but no subscription of five shares, or under, shall be reduced; and it shall not be lawful for any person to subscribe for shares in the name of other persons.”

The grounds of appeal, and the argument, in both cases, suggest a preliminary inquiry into the corporate powers conferred, and the restrictions and liabilities imposed by this Act upon the “People’s Bank ofSouth-Carolina.”

A plain, literal construction of the eighth section manifests the intention of the Legislature to confer upon the new banks all the general powers and rights, and to impose all the restrictions and liabilities which had been conferred and imposed by the original charters of the Planters and Mechanics’, Union, and Commercial Banks, together with the additional liabilities, created by the other sections of the Act. The words used in the ninth section, still more clearly express this intention. The subscribers are declared to be a body corporate, “ with the same privileges and rights as the stockholders of the banks whose charters are hereby renewed.” For the charters of the new banks this language expressly refers us to the charters of the old. Where words of reference are employed, even in a subsequent statute, they will make a thing pass as well as if it had been particularly expressed. ( Wheatly vs. Thomas, T. Raymond, 54.)

It is objected that there-are contradictory provisions in the three old charters, which cannot be reconciled, and that a construction of the Act, which clothes the new banks with the charters of the old, may be within the letter, but not within the intention of the Legislature. It is generally safer to adopt that construction, which is warranted by the words used, than to conjecture what the Legislature meant. (1 T. R. 52.) A plain interpretation of the language employed leaves no doubt that the intention was, as it is expressed, to grant to the new banks the corporate powers contained in the old charters, which were renewed, subject to the restrictions and liabilities imposed by this Act. The Relators contend that the charter of the “ Planters and Mechanics’ Bank” was the standard, which the clause of reference intended to adopt for the eight new banks. It might be enough to say, in reply to this view, that it is not supported by the plain reading of the statute, and, if such were the intention, we can say of the Legislature, quod voluit non dixit. (6 East, 518.)

Some provisions, in the several charters of the three old banks, may differ, and rights may be granted to one and withheld from the others ; but the grant of all corporate powers, necessary to conduct a banking institution, will be found substantially alike in all. Where differences exist, they generally relate to such powers as merely regulate the machinery of Banks, or are found in by-Jaws, which must necessarily differ; but a decision of the questions, made in the argument, does not involve a consideration of such contradictory provisions as may be found in the three charters which were renewed.

With these introductory views of the corporate privileges, rights and liabilities of the “People’s Bank of South-Carolina,” I proceed to consider, first, the questions made by the Relators, in their appeal from the judgment, discharging the rule to show cause why a mandamus should not issue, directing the Commissioners to re-apportion the stock of said Bank agreeably to the charter.

The object of the application for a writ of mandamus was to apportion the stock subscribed among the bona fide subscribers.

The ninth section of the Act authorizes the Comptroller General to appoint Commissioners to open subscriptions to the capital stock of the eight new banks, and adds, that “it shall not be lawful for any person to subscribe for shares in the name of other persons.” It is alleged by the Relators that persons were permitted to subscribe to the capital stock of the People’s Bank of South-Carolina,” in the names of other persons, but for the benefit of the. person making the subscription, and that the same is in violation of the Act incorporating said Bank. The performance of the duty, required of the Commissioners, by the rule, served upon them, is virtually to expunge such subscriptions, and apportion the stock among the remaining subscribers; which suggests the previous inquiry, Were those subscriptions illegal ?

The language of Judge O’Neall furnishes a satisfactory construction of the clause of the Act relating to this inquiry. A literal reading of those words will exclude any subscriptions in the name of another person, whether by a bona fide power of attorney or not. This was clearly not intended. He who bona fide subscribed, under a power of attorney, for another person, was not acting in violation of the law.” The restriction applies to those who subscribed in the names of other persons ostensibly, but really for their own benefit. To the grant of valuable banking privileges, the General Assembly has imposed conditions and limitations ; and those who claim the benefits of the one, should not be relieved from the restraints of the other. If such be the plain meaning of the Act, its directions should have been pursued. Under the authority given to the Commissioners, “to open subscriptions,” their duty was not limited simply to act as silent witnesses to the registry of names, but should have been extended to a control over the legality of the subscriptions. Like managers of elections, they should have required those who claim the exercise of a privilege, to comply with the conditions which are imposed by law. If any doubt' could have been entertained respecting their duty in receiving subscriptions, that doubt was removed by a satisfactory construction of the Act, in an opinion obtained at the request of the Commissioners; and which, for a time, regulated the discharge of their duty in this respect. An abandonment, on their part, of the course which had been prescribed, invited capitalists to the violation of a provision, which they alone could have prevented. If the Commissioners entertained reasonable doubts, respecting the legality of any subscriptions, their duty was to require further evidence than the mere production of a power of attorney, to remove, any suspicions which attendant circumstances were calculated to produce. How could the requisitions of the law be enforced without the performance of such a duty by those who were charged with the receiving of subscriptions ?

The Act provides “ that in case of over-subscription to the stock of any of the aforesaid banks, the said subscription shall be reduced pro rata, but no subscription of five shares, or under, shall be reduced.” An opportunity to compete with large capitalists was secured to subscribers of limited means. It concerned the public, that a policy, indicated by the General Assembly, should have been carried out; and, unless the Commissioners, at the time of subscription, enforced the law, persons would become members of a corporation, enjoying important banking privileges, contrary to the plain provisions of the Act, by which the charter was granted. This Court is of opinion that the Commissioners possessed, and should have exercised the power to prevent subscriptions, made contrary to the express directions of the Act. That subscriptions were made, in the names of persons, who had no interest in the stock, and claimed no control over it,” is proved by the deposition of G. W. King, who has thereby become a stockholder in the “People’s Bank” for 425 shares, in express violation of a provision of the charter; and, if he was not restrained from proving a breach of law by his voluntary affidavit, his readiness to satisfy the doubts of the Commissioners will be presumed. His, however, is not the only case shown, and it is not surprising that, then the door was thrown open, many who were influenced by the hope of large gains, entered and evaded an important provision of the charter.

In rendering a ready obedience to the law, and in a willing observance of its sanctions, public and private rights can alone be protected and secured. It is therefore, a subject of regret, thatthe Commissioners, who seemed to have been laudably anxious to know their duty, had not pursued the course which they first adopted.

It is manifest that, when the subscribers met and became a body corporate, some of the members represented stock, which had been illegally subscribed, and enjoyed the rights and privileges which that stock conferred; and the important question, suggested by this admission, is whether a writ of mandamus against the Commissioners, requiring them to re-apportion the stock, shall be ordered ?

The judgment of the Court on this question will not require that full examination of the law of mandamus, which was so elaborately made by the counsel, in their argument of the cause.

Before an application for a mandamus a demand must be made of those from whom the performance of any particular act or duty is required, otherwise a party would be deprived of the option of either doing or refusing to do that which is required of him.” (Tapping on Man. 283.) . The notice served on the respondents, 25th April, 1853, and signed by R. Dulin, is the evidence oifered to prove the demand. The objection of R. Dulin to the legality of subscriptions; his direction not to pay over the money received from subscribers, and the expression of an intention to adopt legal proceedings, would hardly authorize the conclusion, that his purpose was to demand of the Commissioners that they should apportion the subscriptions and stock among the bona fide subscribers,” which is the language of the rule. So much of the notice as required the Commissioners not to pay over the money, was complied with, and showed a readiness, on their part, which rebuts the presumption of a refusal, if a distinct demand had been made for the per-mance of any other act. An objection, however, for want of a demand, comes too late, after the merits of the case have been discussed. (Tapping on Man. 287.)

Admitting that the relators have complied with the legal requisitions, which are necessary for the obtaining the writ, the next inquiry is, are the respondents the persons from whom may be required the duty of re-apportioning the stock of the “ People’s Bank,” agreeably to the charter 1

The ninth section provides for the appointment of commissioners to open subscriptions to the capital stock of the’banks respectively named ; to require five dollars on each share, from subscribers, and to deposit the same in such bank as a majority of the subscribers shall designate, for the use of the respective banks, on the first meeting of the subscribers.

When the subscriptions were closed and the money deposited, the duties of the Commissioners ceased, and as officers under the appointment of the Comptroller General, they were functi officio. No authority is given to them to apportion the stock pro rata in case of over-subscription, nor can it be inferred from the direction to receive five dollars on each share from the subscribers, and to deposite the same. The directionis not to deposite the amount paid on 40,000 shares, the number among which the capital stock is to be divided ; but the aggregate amount paid on each share subscribed, for the use of the respective banks on the first meeting of the subscribers.

The subscribers, at their first meeting, are declared to be a body corporate, and they are then to receive from the Commissioners a list of the subscribers, with certificates of deposite for the whole amount of the subscription. It is on the corporation the duty devolved to reduce the subscriptionspro rata ; to divide the capital stock, and to make all arrangements to put into operation the charter granted.” Rules for the apportionment were provided by the Act, and the labor required could have been performed readily without the intervention of the Commissioners, whose offices terminated when the subscriptions were closed; and, consequently, they are not the persons charged with, or from whom the relators can require, the duty of re-apportioning the stock of the People’s Bank.”

But conceding to the Commissioners, the power of making an apportionment of the stock before the subscribers became a body corporate, it does not follow that they are still clothed with such power. The purposes of their appointment closed with their books of subscription and deposite of the money, and their official characters did not survive the existence of- the corporation. The practical difficulties, enumerated by Judge Frost, and which are inseparable from the exercise of such a power by the Commissioners, if they possessed it, would render a writ of mandamus nugatory if granted. The mandatory clause of the writ is framed in the alternative, to meet such a contingency; and if the return made to a mandamus si poteris, disclose facts and circumstances, showing the impossibility of performing what the writ commands, such special return will be good and will supersede the issuing of a peremptory writ. A majority of this Court is of the opinion that the respondents have no power to re-apportion the stock of the People’s Bank,” and that the appeal of the relators from the judgment, discharging the rule, be dismissed.

At the same time, and on the application of the same relators, a rule was served on E. P. Starr, and others, to show cause whyan information in thenature of a writof quo warranto should not issue against them for exercising the offices respectively of President and Directors of the “ People’s Bank.” From the judgment of the Circuit Court, discharging the rule, the relators have appealed to this Court.

A mandamus and a quo warranto information are sometimes concurrent remedies, and it was fit that the relators should, if practicable, use the former writ, asan auxiliary process, to purge the subscription list, and thereby ascertain the legal voters; and it does not necessarily follow that a decision, discharging the rule in the mandamus, will conclude the application for a quo warranto. When an office is full defacto, the former, and not the latter, would be the proper remedy. (2 T. R. 259.) The assumption, on which the one is issued, is that what ought to have been done, at a time past, has not been done; (Tapp, on Man. 10,) the other calls in question the defendant’s title to the office, which he claims to exercise.

The allegation to sustain the rule for a quo warranto, against the respondents, is that, at the election held for President and Directors of the “People’s Bank,” illegal votes were cast, and that the respondents were not duly elected, or that the election was void.

G. W. King’s deposition alone is as satisfactory to prove that he gave illegal votes, as it is conclusive to show that his subscription was a palpable violation of the law. It was contended in the argument, that there was no corporation, and that the election is, therefore, void. If no corporation exist, it would be nugatory and fruitless to proceed any further in the quo war-ranto, and call in question a harmless and pretended claim, where no civil right is in controversy. If there was no such corporation, there was no such officer, and it would be, as was said by Lord Ellenborough in Rex vs. Saunders, (3 East, 119,) as if a stranger had come into the town, and claimed to be President or Director.

By the terms of the charter, the subscribers became a corporation at their first meeting, and in that character they must be regarded. A quo warranto may issue, however, although the election be neither void nor irregular, as where the person elected did not obtain a majority of the legal votes. If, deducting the illegal voles given to the respondents, they had not a majority; or, if deducting the illegal votes, the other opposing candidates for President and Directors were elected, it would follow that they were not duly elected, and that their title is defective. (2 Nev. & Man. 487.) These facts, so necessary to maintain the position assumed by the relators, have not been established.

There are other objections urged against the application, which are entitled to great consideration, where the judgment of the Court rests on the exercise of a sound discretion.

A corporator’s interest makes him a good relator; yet by his acts he may forfeit the right, although the defendant’s title be defective. In the case of the King vs. Mortlock, (3 T. R. 300,) and the King vs. Stacey, (1 T. R. 1,) the rules were discharged. In the first place, the relator was party to an agreement not to enforce a by-law, the non-observance of which was the ground of his application; and in the other, objection was urged against an election at the iustance of oue who was present at, or concerned in, the election. Corporators, who attend and vote for the election of officers, are not competent relators to question the titles of those elected, if they knew of the objection on which they rely, (Rex vs. Slythe, 6 B. & C., 240.) It has generally been considered,” says C. J. Abbott, “a rule of corporation law, that a person is not to be permitted to impeach a title, conferred by an election in which he was concerned, or the titles of those mediately or immediately derived from that election.”

Numerous acts of acquiescence, on the part of the delators, are in evidence, which directly affect their competency. They attended a meeting, which the Act declared to be a body corporate, participated in its deliberations, and acquiesced in its decisions, by accepting the excess of their subscriptions and canvassing and voting in the election of officers. These acts of assent and co-operation, with a full knowledge of all the objections to the validity of the subscriptions and legality of the votes, which they now allege, render them incompetent relators. In the argument, a participation which disqualifies, was limited to violations of the express provisions of the charter. The principle does not rest alone on a complicity in guilty acts; but also on a concurrence with, and an agency in, those proceedings and arrangements, which are necessary to put into operation the charter granted. It cannot be pretended that illegal subscriptions were not received by the Commissioners, or that illegal votes were not cast at the election; but it has been long held that an information should not go, of course; and the particular circumstances of these cases do not warrant the Court, in the exercise of a sound discretion, to grant the remedies which the relators seek.

The judgment of the Circuit Court, discharging the rules, is, therefore affirmed, and the motions are dismissed.

Motions dismissed.

Wardlaw, Withers, Whitner, and Munro, JJ., concurred.

Motions dismissed.  