delivered the opinion of this court.

The appellant applied by petition to the judges of Anne Arundel county court for a writ of Mandamus, to be directed to James Iglehart, as president of the Annapolis and Elk-ridge Railroad Company, requiring him to execute a bond to the petitioner. This application seems to have been grounded upon a resolution of the board of directors, directing the president of the company to issue bonds to Passmore McCullough, or to his order, or to his assignees, if it should appear that any *66assignment of his claim against this company had been made previous to the passage of this resolution, authorised under the act of 1842, chap. —, to the amount of $4427.96, after deducting from said amount whatever interest may be due on the several claims of R. Welch, of Benj., for which bonds are, this day, directed to be issued, with a proviso, that before the bonds are issued, he shall file with the president a written obligation, discharging the company from any indebtedness to him on any account whatsoever.

How much is due to Passmore Me Cullough, after making these deductions, does not appear in the record. But the petition of the appellant states, that of this sum the said Passmore had assigned to the petitioner $3116.39, previously to the passage of the resolution.

He applied to the president, and offered to file with him the release required. Thereupon the petitioner, by his counsel, demanded the issue of said bonds, according to the resolution, which he, (the president,) peremptorily refused to do. He insists that he is entitled to the bonds, and prays that a Mandamus may be issued, requiring him to execute them.

No such act as that alluded to in the resolution is to be found, but in the release which Passmore McCullough executed, and which accompanies his petition, reference is made to the act of 1841, chap. 168; and certainly there is nothing in that act of Assembly which authorises those proceedings. By a reference to that law it will be found, that the amount of the claim of this individual, if he had any against the company, was to be ascertained by John C. Le Grand, Esq., and that neither the board of directors, nor the president and board of directors, had any authority to issue bonds to him for any amount, not authorised by that gentleman; unless this sum was awarded by Mr. Le Grand, the president of the board could not be bound, in obedience to the resolution, to issue the bonds, as the board of directors was not authorised to issue them, until the amount was certified to them by the arbitrator.

All claims against the company then existing, with the exception of those of McCullough and another, are to be ascertained by the president and directors of the company, *67but with the adjustment of the claims of those individuals, the company is not charged.

It is obvious, that the creditors for whom provision is made by the act of Assembly, were to be creditors of the company at that time, and the fund thereby created, is a fund for the payment of those claims, and none others. It is a fund in which all the, then, creditors may have an interest, and of which they could not be deprived by the board of directors, without their consent. The assignor of the petitioner is a person who may have a claim against the company. To entitle him to any interest in this fund, he must consent to submit his claim to Mr. Le Grand, and that his award shall be final and conclusive: (see the Act of Assembly.) To this mode of having his claim finally adjusted, he was not bound to consent; but unless be does consent to it, the act of 1841 makes no provision, whatever, for the payment of any claim which he may have against this company. It does not appear in the record that he did consent to such arbitrament. Mr. Le Grand may or may not have awarded, in the premises, No resolution of the board of directors can authorise the president, or any other officer, to issue a bond, (payable out of that fund,) which is not authorised by the law which creates the fund; we certainly cannot infer from that resolution, (even if it was legally passed,) that the sum mentioned in it was the sum, or any part of the sum, ascertained by -Mr. Le Grand to be due to this person. The language of the resolution would lead to a different conclusion, and besides this, the act of 1841 does not authorise a bond or certificate of debt to be issued to any other than the creditor himself.

We have also been referred to the act of 1843, chap. 180. But the creditors of the company, or such of them as agreed to the law of 1841, and have had the amount of their claims ascertained by the president and directors, have an interest in this fund, and without their consent no part of it must be applied to the payment of any debt for which the act of 1841 does not provide. Now, the claim of McCullough, as ascertained by the persons named in the act of 1843, is not one of the claims for which the act of 1841 provides. If the board of *68directors can apply any portion of these funds to procure from McCullough a release of all his claims, it might next attempt to pay debts since contracted, out of the same fund. Until the creditors, to whom bonds were issued in virtue of the act of 1841, are satisfied, these funds belong to them, and cannot be taken from them. But it nowhere appears that the resolution is grounded upon any award, given in virtue of the act of 1843.

But it is said, that the president of the company, (Mr. Iglehart,) when the application was made to him for the bonds, assigned no reason for refusing to issue them, save this, that he was not allowed by the board to vote on the occasion; and the appellant has furnished us with a copy of the proceedings of the board, whereby it appears, that the directors excluded the president from voting, and thereby obtained a majority in favor of the resolution. These doings, it is insisted, are authorised by the charter of this company, and we are referred to a clause in the charter of the Baltimore & Ohio Railroad Company, (made a part of this charter,) which says, that the stockholders shall elect a certain number of directors, “ to manage the affairs of said company.” To be sure, if this was the only section at which we are to look, in order to decide whether others have not a right to vote with the directors appointed by the stockholders, we might conclude, that the president of the board was not allowed a vote; but for the same reason we should be obliged to deprive of their votes the directors, which, by another clause, are to be appointed by the State. When, however, we examine the different clauses which define the duties of the president and directors, what duties the president and directors, (they, “or a majority of them,”) are to perform, we feel justified in concluding, that the president and the directors appointed by the State, have the same right to vote upon the various questions which are to be decided by the president and directors, as those who are elected by the stockholders.

If then the resolution was such an one as might be passed, the president had a right to vote, and being deprived of his vote, he was not bound to issue the bonds.

ORDER OF THE COURT BELOW AFFIRMED.