
    
      SAMPLE ET AL. vs LAMB’S CURATOR.
    
    APPEAL PROM THE COURT OP PROBATES FOR THE PARISH OF WEST FELICIANA.
    Eastern District,
    
      March 1831
    A joint authority cannot he exercised hy a part of those to whom it is delegated, even after the death of one of them.
    A number of individuals subscribed a sum of money for the construction of a road, and appointed five commissioners to contract for the work.
    They employed Lamb, and transferred to him the subscription paper. Lamb collected from the subscribers large sums, and died before the completion of the work.
    The petition stated that one of the commissioners was dead, and this action was brought by the surviving four, to recover damages from the curator of Lamb.
    The defendant excepted to the plaintiff’s right of action, on the ground that the power was delegated to five commissioners, and one of them was not a party to the suit, but was alleged to be dead. The exception was overruled— there was a judgment from which the plaintiffs appealed, but the reversal of which was prayed for by Turner, for the appellees, who made the following point:
    1. There was no authority vested in the plaintiffs to commence and carry on this action, and the court below erred in overruling the exception. — G. G, arts. 2964,2965, 2966.
   Martin, J.,

delivered the opinion of the court.

The plaintiffs state that a number of individuals subscribed a considerable sum of money, for the construction of a road from the town of St. Francisville to the Mississippi, and appointed them and one Smith, who has since died, their commissioners, to carry their intention into execution; and they accordingly contracted with Lamb, who took on himself tojerfect the road, and to enable him to do so, they transferred the subscription paper to him: that he made large collections, but did not comply with his engagements,. and has since died; and the defendant is curator of his estate. The petition concludes with a prayer that the defen- , , , 1 , „ , , . . dant be decreed to retransfer the subscription paper to the plaintiffs — that they may be declared privilege creditors for the value of certain slaves purchased by Lamb out of the moneys collected by him from the subscribers: that damages be allowed them, &c.

A joint nuthority cannot be exercised by a part of is* delegated,°even after the death of one of them.

The defendant pleaded several matters as exceptions to the plaintiff’s right to maintain their suit; but particularly that they allege that authority was given to them and another, to act as commissioners or agents for the subscribers; and that the authority being joint only, and not joint and several, can only be exercised by the five persons to whom it was granted, and not by a less number, even after the •death of one of the five.

The exceptions were overruled — the defendant answered over: there was a judgment, from which the plaintiffs appealed; but the reversal of which is prayed by the defendants and appellees, who contend that their exceptions were erroneously overruled.

The authority given by the subscribers to the five indivi- . , . duals, whom they appointed as their commissioners, was a P^t one only: it was not joint and several, and cannot be exercised by a less number than the whole: not by the / J survivors of either of them.

Pothier states that when several persons are authorized to do an act jointly, the death of either, puts an end to the authority. — Mandat, 102. In another part of the same work, he examines whether when two are authorized to do ■an act, either of ihem exceeds his authority in doing it ■alone; and he adds, that if from the smallness of the object, it is presumed the mandatories were expected to act severally, the authority has not been exceeded. He makes it a question of fact on a point of evidence.

If this afforded us a legitimate rule, the presumption would be, that the authority was not joint and f"’ whether a less number than all could act, and what number was intended, would not be easy to be determined.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed, and the petition dismissed with costs in both courts.  