ant. The plaintiff then offered in evidence a subscription book, purporting to be a subscription book for the stock of the plaintiff, and proved by an agent of the company, to whom the book had been intrusted to procure subscriptions, that it was the subscription book of the plaintiff, and that the entry in that book, to which the name of the defendant was subscribed, was made and signed by the defendant. In that book there is this heading: “We, the undersigned, agree to subscribe to and pay for the number of shares of the capital stock of the Baltimore & Eastern Shore Railroad Company set opposite our names, provided the said road shall be built on the Vienna route; said shares of stock to be of the par value of fifty dollars, and the same to be paid for in installments of twenty per cent., as any ten miles of road are completed." This heading had appended to it about 60 signatures, and then follows this entry: "I bereby agree to take twenty shares of the Baltimore & Eastern Shore Railroad Stock when completed to Vienna. $1,000.00. Albert Webb." To this offer of this subscrip tion book, with the entry therein, signed by the defendant, the latter objected, and, in support of his objection, has assigned several grounds: First, that there was no evidence of a tender of certificates of stock to the defendant, and that this suit could not be maintained without such tender, and that the subscription was invalid, because the statutory installment was not paid; secondly, that there was no contract of a present subscription for stock, but, at most, nothing more than a mere promise to subscribe when the road was completed to Vienna; thirdly, that, if the entry signed by the defendant be treated as a present subscription to stock, the contract is within the provisions of the statute of frauds, (29 Car. II. c. 3, § 17,) and that it is fatally defective in omitting to name the vendor of the stock, and that there is no sufficient consideration for the defendant's undertaking shown on the face of the subscription paper. There is also a general objection taken to the admissibility of the subscription book in evidence. The objection to the admissibility of the evidence was overruled. In the opinion of this court, none of the grounds assigned in support of the objection taken can be sustained.

1. There is clearly no valid ground for the objection that the certificates for the stock should have been tendered to the defendant, as a condition precedent to the right to maintain this action for the money due on the subscription. This would seem to be well settled. 1 Mor. Priv. Corp. § 61, and cases there cited; Scarlett v. Academy of Music, 43 Md. 203. Nor is the objection well taken that the subscription is not binding upon the defendant, because it is not shown that an installment of five dollars in cash, on each share of stock subscribed, had been paid at the time of making the subscription, under section 163 of article 23 of the Code. The omission of such payment does not invalidate the subscription. That construction of this provision of the statute has been settled by the decision of this court in the

case of Oler v. Railroad Co., 41 Md. 593; and, with respect to the necessity for showing that the amount of the subscription had been called for by the directors of the company before suit brought, it was admitted that the defendant had received a letter before suit brought, purporting to be from the secretary of the plaintiff, calling upon him to pay the money due on the stock, as being then due, but that payment was refused. Whether that call or demand was made by the authority of the directors of the company was a question of fact for the jury, upon all the evidence in the case.

2. The subscription, in the form in which it was made, was inchoate and conditional. It was such, however, as the company had a right to accept. Taggart v. Railroad Co., 24 Md. 595; Railroad Co. v. Hickman, 28 Pa. St. 318. It was simply a continual offer by the defendant to become a stockholder after the condition specified had been performed by the company. The performance of the condition precedent on the part of the company was necessary to a valid acceptance of the offer thus made by the subscriber; and before this acceptance, by the performance of the condition precedent, the defendant did not, by virtue of such subscription, become a member of the company. His subscription was a mere offer, and, unless withdrawn before the condition performed by the company, it became final and absolute immediately upon the performance of the condition; or, as said by this court in Taggart v. Railroad Co., supra, such conditional subscription, upon the performance of the condition, thus became ultimately an unconditional and absolute subscription; and, that being the effect and operation of the subscription made by the defendant, it is quite clear that no other or further act of subscription was necessary, or contemplated by the parties, in order to convert the original conditional subscription into an unconditional and absolute subscription. The defendant ap. pears to have declined the conditional terms embraced in the heading of the preceding subscriptions, which required the amount of the subscriptions to be paid in installments of 20 per cent. as any 10 miles of the road should be completed; and he preferred to make his subscription separate, and to make it depend upon the completion of the road to Vienna; and, when the road was so made, (which is admitted to have been done before this ac. tion was brought,) the subscription of the defendant for the 20 shares of stock became absolute, and the price therefor then became payable on demand of the directors of the company. This is the clear import of the subscription of the defendant. No particular form of subscription is made essential, and the pres ent subscription is not of a formal character; yet there is enough in the paper, when read in connection with what precedes it in the same book, to show what was really intended by the parties to the contract.

3. The contention that this contract of subscription is within the statute of frauds (29 Car. II. c. 3, § 17) is not maintainable,

either upon reason or authority. A subscription for shares of stock, in an ordinary corporation, is not a contract for the sale of "goods, wares, and merchandise, "-words which comprehend only corporeal movable property. Shares of stock are but choses in action, and are not within the statute; and this is the established construction of the statute by the English courts, as shown by the collection of cases by Mr. Benjamiu, in his admirable work on Sales (pages 90, 91;) and the same construction has been adopted by decisions of high authority in this country, (Browne, St. Frauds, § 298; Ang. & A. Corp. § 563 Clark v. Burnham, 2 Story, 15,) though there are some decisions, especially of an earlier date, entitled to great respect, to the contrary. In the absence of a binding authority, such as an express decision of this court, we are not disposed to adopt and follow the decisions of the American courts, holding that the statute does apply in such cases, being, as they are, in conflict with the English courts upon this subject. We think the English decisions furnish the better and more reasonable construction of the statute. In the case of Colvin v. Williams, 3 Har. & J. 38, the only case in this state supposed to give any support to the contention of the defendant, the question presented was quite different from that presented in this case. In that case there was a sale of bank stock by a broker, and the broker became the agent of both seller and buyer, in whose name, as vendor, a memorandum of sale was made out, and delivered to the defendant, who filled up the blank in the memorandum with the number of shares he desired, and accepted the same as purchaser of the number of shares sold. Upon this memorandum the court below held the plaintiff to be enti tled to recover, and, upon appeal, this court held the court below right in its ruling, and affirmed the judgment. There was no opinion delivered; but it is stated at the conclusion of the case-whether by the authority of the court, or by the reporters of the case without such authority, does not appear--that it was said by the court that the sale of bank stock is within the statute of frauds, and that the broker was the common agent of both the appellee and appellant. If such was the case, as we must take it to be, it is very clear that the declaration made at the conclusion of the case, "that the sale of bank stock was within the statute of frauds," was wholly unnecessary to the decision of the case, and was purely a dictum, if in fact it be assumed to have emanated from the court at all. The statute did not avail as a defense to the defendant, if it was in fact relied on as a defense, which does not appear to have been the case. There have been many cases since that decision in which such defense could have been taken if the statute was applicable in such cases as this, but which passed without question as to the application of the statute. Upon both exceptions, therefore, we are of opinion that the court below was correct in its rulings, and that the judgment appealed from should be affirmed.

COMMISSIONERS

OF WASHINGTON COUNTY v. SCHOOL COM'RS OF WASHINGTON COUNTY.

(Court of Appeals of Maryland. March 15, 1893.) MANDAMUS-TITLE TO OFFICE SCHOOL BOARD HOLDING OVER-RIGHT TO SCHOOL FUNDS.

1. Where a person has been appointed to public office, and has qualified, but is prevented by a former incumbent from obtaining possession of the office, the title to the office will not be determined by a court of equity, the appropriate proceeding being by mandamus.

2. Where a school board, who are in possession of their office under an appointment by the circuit court judges, under act 1872, refuse to surrender to a new board appointed by the governor, as provided by Act 1892, c. 341, it is the duty of the court to aid the old board in obtaining money set apart for the public schools, as long as it is in actual possession of the office, so that there shall be no stoppage of the public business.

3. Act 1886, c. 441, (Code, art. 16, § 177,) providing that the court may at any stage of a cause, on the application of any party thereto, or party in interest, or of its own motion, or der the issue of a mandate or injunction directing any party to such cause, or any party properly brought before it under the existing practice, to abstain from doing any act or acts, whether conjointly or in the alternative, whether in the nature of specific performance or otherwise, named in such mandate or injunction, and may make such terms and conditions as to security, etc., as to it may seem fit, preliminary to the granting of such mandate or injunction, authorizes a decree enjoining "the county commissioners from refusing to pay to the treasurer" of the old board money which may be payable to the "board of school commissioners."

4. The denial by the circuit court of an application requiring complainants to give an injunction bond is within the discretion of the court, and not reviewable on appeal.

Appeal from circuit court, Washington county, in equity.

Bill by the school commissioners of Washington county (appointed under Act 1872) against the county commissioners of Washington county to restrain them from paying out certain moneys. On petition by the new board of school commisthey were made parties defendant. From sioners, appointed under Act 1892, c. 341, a decree for complainants, defendants appeal. Affirmed.

Argued before ALVEY, C. J., and BRYAN, McSHERRY, FOWLER, BRISCOE, ROBERTS, and PAGE, JJ.

Hy. Kyd. Douglas, Atty. Gen., and John P. Poe, for appellants. J. C. Lane, Alex. Neill, and J. A. Mason, for appellees.

BRYAN, J. By the act of 1892, c. 341, the legislature made important changes in the school law. This act authorized the appointment of the boards of county school commissioners by the governor; thus taking the appointment out of the hands of the judges of the circuit court, to whom it had been confided by the act of 1872. The governor appointed six school commissioners for Washington county, and they in due time qualified according to law, and elected a person to fill the office of secretary, treasurer, and examiner. The school commissioners who were in office at the time of the passage of the act

above mentioned, and whom, for convenience, we shall designate as the "Old | Board," refused to surrender to their successors the books, papers, and official seal of the board, and have appointed trustees for the school districts, and school teachers, wherever necessary, and have retained control of the public schools in Washington county. The commissioners appointed by the governor, whom we shall call the "New Board," have taken no steps to obtain, by the aid of the law, possession of the offices to which they have been appointed. The old board filed a bill in equity in the circuit court for Washington county against the county commissioners, praying for an injunction to restrain them from paying to any person other than their secretary and treasurer any money due and payable to the board of county school commissioners of Washington county. On petition of the new board, and their secretary, treasurer, and examiner, they were, by order of court, admitted to appear in the suit as parties defendant. They, as well as the county commissioners, answered the bill of complaint. When the cause was heard the court passed a decree enjoining the county commissioners from paying to the treasurer of the new board, or to any other person than the treasurer of the old board, any money which was payable to the board of county school commissioners, and also enjoining them from interfering with the old board in the performance of its duties, and also enjoining them from refusing to pay to the treasurer of the old board any money due to the board of school commissioners. Appeals were taken by the county commissioners and by the new board.

When a person has been duly appointed to public office, and has taken the prescribed oath, and done such other things as are made prerequisites by law, he has a right to enter upon the discharge of his duties. If he is prevented by a former incumbent from obtaining possession of the office, the law affords a perfectly adequate and complete remedy. In this state the usual and appropriate proceedings is by writ of mandamus, of which a great many instances are found in our Reports. It is a legal remedy; that is to say, it is administered on the law side of the court, as contradistinguished from its equitable jurisdiction. Hence, it is held, as there is a complete, perfect, and adequate remedy at law, that a court of equity is debarred from determining the title to an office disputed between conflicting claimants. It will be thus seen that it was not within the power of the court below to adjudicate which of the rival boards was the lawful board of school commissioners, and consequently it is not within the power of this court, on appeal, in this case. This court has, on rare occasions, expressed an opinion on a question not presented by the record, but it has always been in a case where it was seen that it would terminate the existing controversy. If we were to express an opinon in this case, we have not the power to give effect to it by putting either board in possession of the office, and we do not see

how we would in any way promote the public interest by a departure from the usual course of confining our opinion to the matters presented for decision by the record.

The old board were appointed many years ago by the judges of the circuit court. and by virtue of that appointment are now in possession of their office, and are exercising its functions and discharging its duties. We cannot recognize them as officers de jure, because, by the terms of the statute of 1892, the appointment and qualification of their successors put an end to their official term. As we have said, we have not the power, in this case, to adjudicate the validity of the title thus acquired; and, likewise, we have not the power to adjudicate the validity of the title of the old incumbents. But it is our duty to recognize the visible facts of the case, and to deal with them. The public interest requires that the duties of the board must be performed by somebody. The board was not established for the benefit of individuals, but to accomplish high and paramount objects of public policy. It could never be tolerated that the course of public education should be arrested while a contest was waged to determine what individuals should administer the system. It is on considerations of this kind that the law recognizes a de facto officer, and not from any regard to his personal interests. The public business must be transacted, and therefore his official acts, performed in doing what the law requires to be done, must be sustained as valid. There is no alternative between this course and the stoppage of the public business, and this latter result is, of course, out of the question. If the de facto officer is to discharge the duties of his office, he must have a right to use the means which the law has provided for the purpose; and it would be in vain to give him the right to the means, if the courts should refuse him their aid in obtaining them. Upon these grounds we think that the courts ought to aid the old board in obtaining the money which has been set apart for the maintenance of the public schools; that is to say, as long as the old board is in actual and visible possession of the public trust once confided to it, but no longer. It will be perceived that we are speaking exclusively of such matters as affect the public interest, and have no reference whatever to such acts of a de facto officer as concern his own personal interests. It is not necessary now to say more on this latter question, as it may come before us. hereafter in a proceeding where it will be directly presented.

The injunction decreed by the circuit court is peculiar in its form. It enjoins: the county commissioners from refusing to pay to the treasurer of the old board money which was payable to the board of school commissioners of Washington county. This, of course, is equivalent to an affirmative order that they shall make such payment. In Carlisle v. Stevenson, 3 Md. Ch. 503, Chancellor Johnson said that this form of injunction originated with Lane v. Newdigate, 10 Ves. 193, and that the prin ciple of that case seemed never to have

governed by the same rules of law by which the ordinary liability of one who has broken his contract is determined; and, this being so, if one guaranties in absolute terms the performance of specific act or contract by another, his liability being commensurate with that of the principal, whatever proof is necessary to support an action against the principal will be sufficient in an action against the guarantor: and, as demand upon the principal is not necessary to support an action against him for a breach of his contract, it is not necessary to allege or prove notice of demand upon and default of the principal to charge the guarantor. Having guarantied absolutely and unconditionally that another shall perform a certain specified contract, he must at his peril see that the contract is performed. The guarantee must know, it is true, of the default of the prin cipal, and this default may be unknown to the guarantor; but it is not a fact which lies within the exclusive or peculiar knowledge of the guarantor. On the contrary, it is a fact in regard to which the guarantor had the easy and accessible means of information, either by inquiry of the guarantee, or of the principal himself; and having undertaken that the specific contract shall be performed, and the guarantee having accepted and acted upon the faith of the undertaking, it is the duty of the guarantor to see that the contract has been performed; and, this being so, there is no obligation, legal or moral, on the part of the guarantee to inform the guarantor of a fact which the latter, having the means of knowledge, was himself bound to know. And such was the wellsettled rule of the common law. As far back as Somersall v. Barneby, Cro. Jac. 287, where the promise was to save harmless the plaintiff from all debts and liabilities that he might incur at the request of the defendant's son, notice was held to be unnecessary, because the defendant might have obtained the information from the son if he desired it. And in Brookbank v. Taylor, Cro. Jac. 685, where the promise was to pay the rent of a farm if the tenant did not pay it, notice of the default of the tenant was held to be unnecessary, and for the reason that the promisor was bound to ascertain whether the rent had been paid. And in 3 Com. Dig. tit. “Pleading, and 16 Vin. Abr. tit. "Notice," and Hodsden v. Harridge, 2 Wms. Saund. 62, note, and in fact in all the standard authorities, the rule is stated that if an act is to be done by a third person, who is known, notice of his default is unnecessary; and such is the uniform current of English decisions. In the later case of Bradbury v. Morgan, 1 Hurl. & C. 249, where it was alleged that the defendant's testator requested the plaintiff to give credit to a third person, and promised to guarantee the running balance of his account, the declaration was held to be good, although it did not aver acceptance and notice to the guarantor. And in Vyse v. Wakefield, 6 Mees. & W. 442, the law as to notice is summed up by Lord Abinger as follows: "The rule to be collected from the cases seems to be this: thut, where a party stipulates to do a certain thing on a certain specified event.

which may become known to him, or with which he may make himself acquainted, he is not entitled to any notice, unless he stipulates for it; but, where it is to do a thing which lies within the peculiar knowledge of the opposite party, then notice ought to be given." And Parke, B., added that, "when a specific act is to be done by a third party named, no notice is necessary." Now, in this country it has been held by courts of high authority that, where the guaranty is by letter for future advances or contingent sales, to bind the guarantor, notice must be given, not only of the acceptance of the guaranty, but also of the demand upon and notice of nonpayment by the principal debtor. In Douglass v. Reynolds, 7 Pet. 113, where the defendants agreed by letter to become responsible for acceptances or advances in money to be made to the debtor, not exceeding $8,000, the superior court held that, to charge the guarantors, it was necessary to prove notice to them that the guaranty had been accepted; and, further, that demand had been made on the principal, and notice of his default had been given within a reasonable time. Where a letter of credit is given, notice of its acceptance was necessary, for the reason, says Mr. Justice Story, "it may regulate in a great measure his course of conduct and his exercise of vigilance in regard to the party in whose favor it is given; and notice of demand upon and nonpayment by the principal was necessary, for the reason that the guarantors are not to be held to any length of indulgence of credit which the creditors may choose; but have a right to insist that the risk of their responsibility shail be fixed and terminated within a reasonable time after the debt has become due." When the case came before the court a second time, the rule as to notice of the default was modified, and the failure to give such notice was held to be a matter of defense, and that any loss or damage occasioned by the omission to give notice might be relied on as an entire or partial defense to the action. As thus modified, the rule has been followed in some states, while courts in other states have rejected it, as being unsupported on principle, and against the settled rule of the common law in regard to contracts of guaranty; but, be this as it may, we are not dealing with a contract of guaranty for future advances, and we have referred to Douglass v. Reynolds, and the reasons upon which the case was decided, because it seems to be the foundation on which some courts have extended the rule as to notice of the default of the principal to every contract of guaranty, however absolute and unqualified may be its terms. It would be a difficult, and in fact we may safely say an impossible, task to attempt to reconcile the principles by which these cases are supposed to be governed; and, without considering them at length, it is sufficient to say that the better doctrine, and that which seems to be the best sustained on reason and authority, seems to be that, where one guaranties in absolute terms the payment of a specific debt or the performance of a specific contract, the guarantor must at his peril see that the