
    
      PAILLETTE & AL. vs. CARR.
    
    West. District.
    
      October 1814.
    
      The majority of the administrators of a public school may sue, in their own names.
    Altho' the defendant added the words "Parish Judge" to his name, in signing
    Baldwin, for the plaintiffs.
    This cause has been brought up upon a bill of exceptions which states
    1. That the plaintiffs and appellees cannot maintain an action against the appellant, they being only a majority of the board of administrators , J . . the public school, while a suit could only be , . , ⅛ , , . brougnt by all of them jointly .
    2. That the obligation on which the defendant is sued, being signed by him as Parish Judge, he is not liable as ail individual.
    ) - I. The prominent and material features this case appear from the record to be these. The administrators of the public school, being authoris-ed to draw from the treasury the sum of two thousand dollars, gave a draft to the appellant for that sum, tq facilitateTiim in the payment of a sum which he owed to the treasury, for the arrearages of taxes that he had failed to transmit. Updn the receipt of this draft, he gave his note payable to the administrators of the public school, and signed it as Parish Judge. Suit was brought by the appellees in their names, stating themselves to be adiriinistrators. During the progress of the trial the exceptions were taken, but not being considered good by the District Court, judgment' was rendered for the sum, after deducting some payment which had been made,
    
      ^ shall confine myself to the points brought into view by the exceptions. As to the first then, js ⅛ well taken? I contend that it is not. To , ' understand the question, or the correctness of the decision, it is necessary to ,call into review the different statutes authorising and establishing public seminaries. The first was passed in the 1st. session of the Legislative Council, chap. 30. This establishes the University, gives it the name of the “University of Orleans” incorporates it by that name and appoints the regents. The chap. 8 of the acts of the 2d session of the Legislative Council is a supplement to the above act, empowering the regents to fill vacancies. The 18th chap, of the acts of the 2d sess. of .the 3d Legislature enlarges the power of the regents and directs them to appoint three administrators to each of the schools established in each county in1 the then territory. By the said act, it is made the duty of said administrators to superintend the schools under their direction and controul, to draw for the sum appropriated to purchase lots and buildings, &c. and authorises them to make such by-laws and ordinances as they may think fit for the government and discipline of their respective schools. This act enlarges and extends the first act of incorporation to the schools in the different counties and constitutes them an integral part of the first body corporate, vested with all the privileges, capacities and powers oyer the subjects committed to their administration, in as full and perfect a manner as 7 < * was given to the original institution, and consequently they can proceed in the discharge of their functions, in the same manner as the first • ¶ . i body corporate can do*
    What then are powers of a body corporate with respect to the commencing and conducting suits at law ? As it cannot appear ill the persons of its members, it must appear by attorney, who can be appointed, by the laws of England and by the Civil Law, by a majority of its members, 1 Black. Com. 478, Domat, book 2, tit. 3, 5 1. The appellees then, being a majority, had a right to appoint an attorney to institute and conduct the suit. The appellant cannot protect himself under the plea that he is one of the members. If he could, one member might controul the corporation and frustrate the object for which it was created, by obtaining and withholding the funds by means of which-alone it is enabled to act, or by fraud or violence impede and stop its proceedings. For which conduct, by this privilege of exemption from suits contended for, he could protect himself with impunity from judicial punishment and from judicial process. Which ever members first seized the funds might hold them until his conscience prompted him to a surrender. But such conduct would be as contrary to law as to common reason and common honesty. A majority has a right to appoint an attorney and to direct suit to be brought even against one of its mem-0 0 bers*
    ls this suit then well brought in the name of the appellee^ ? They are stiled administrators Gf schooi &c> it is the practice in the different states and in England to sue by the name of the corporation, and the enumeration of the individual members would at best be inconvenient surplusage. But the, 26th chap, of the acts of the 1st session of the Legislative Council requires that petitions should state the names of the parties, their places of residence, &c. It is true that the /appellees might have been well designated by calling them the administrators of the school. But then an important circumstance would have been omitted, to wit, their residence. Now a corporation can have no residence because it is an artificial, invisible, intangible body and if the names of the appellees had not been stated with the place of their residence, they would under this requisite of the statute have failed in .their suit, as an objection would well Lave laid to the sufficiency of the petition.
    II. The second objection will not require much discussion. The appellation of Parish Judge did not enter into the essence of the contract. It was an addition made to his name, not because he contracted in his official capacity and by virtue of his office, for it was a private individual transaction ; but it may be presumed from a little vanity to have it spread upon the record that he bore that title.
    The judgment being correctly rendered for the sum due, another question presents itself for the consideration of this Court. -The statute authorises this Court to assess damages to the appellees when an appeal is taken lor the purpose ©f delay. No case has yet come under the cogni-sance of the Court that gives the appellees juster pretentions to expect a compensation for the delay occasioned by the appeal, beyond the legal - interest. The whole of the appellant’s conduct justifies a belief that he obtained the money from , the appellees with a view, if not of appropriating it exclusively to himself, at least of retaining it until it should be forced from him by the last judicial process, and, when received, it ought in justice to be accompanied with ten per cent damages. • ,
    Wallis, for the defendant.
    The exceptions in this case are well taken. The administrators are to act jointly in every thing which concerns their administration : no one of them cari act by himself. It is the body corporate that acts ; not the individuals. The body corporate is considered in law as one being, as one existence inseparable in its nature and incapable of division. it must act entire or not at all. As well might an individual act against himself, as a corporation against any of its members. The limbs are not more closely attached to the natural body than the individual members are united to the body corporate. They enter into and form its essence.' How then can they be separated ? - •
    The authority cited do not militate against the principle contended for. They say . that the act of the majority is the act of the whole. This is not disputed. But is it to be considered when acting against each other ? If such was the case the authority who legislated upon the subject would have thrown out some hint from which it could have clearly been understood that Such was the truth. Nothing however in their expressions will justify such a conclusion. Hence it is infer-ed that such is not the law1. If it was, the most inconvenient consequences would result from its operation. If the minority became offensive to the majority, the latter would unite in a suit against them and with the assistance of- the corporate funds carry on their lega) prosecution without any expence to thé individuals composing that majority. Or, if this did not answer their purpose they could proceed a little further and pass an act of expulsion. The majority of the members of this school may act, but it must be understood to be, in cases coming within their administration, not to sue or expel an offending member. If either of them violates his duty So far as to lay himself liable to a suit, he ought to be expelled by a competent authority before the suit can be commenced.
    The other exception is equally strong in favor of the appellant. The nature of the obligation is to be observed in bringing suit. No man is bound beyond or differently from his contract. If the obligation is contracted as tutor or curator, the obligor is only bound in that capacity. If as an attorney in fact, he can only be personally liable by deviating from his authority, or failing to fulfil his undertaking. Here the appellant con--tracted as Parish Judge. It was accepted with that qualification and it can only be enforced with that addition.
    If the Court should be of opinion that the judgment below is correct, damages however ought not to be decreed, as the appellant had certainly good reason to believe that it is erroneous, and the appeal was not taken for delay, but to correct the error.
   By the Court.

In all bodies corporate the majority must rule, and there is no doubt that two. of the three administrators of this school had a right to sue in the name of the board. The only difficulty, if such it can be called, is that instead ' of bringing their action in the corporate name of the board of administrators, they have added their o\yn individual names. But, this defect in the / . . ' appellation of the suitors is .a mere surplusage, and as such mustbe disregarded. ⅝

jH£ other objection of the defendant is still more unimportant. He thought fit to sign the note nowin suit as Parish Judge; but whether he was Parish Judge or not, at the time he received, the money, is a matter of no consequence. This was money lent him to answer his purposes: money which he applied to the discharge of his obligations, and .which he promised to return. W hat has his official capacity to do with such a transaction ?

Various other difficulties, not worthy of notice, have been raised by the appellant, which, together with those above adverted to, have led this Court to suspect that the object of the appellant, ever since the beginning of this suit, has been delay.

In a case of this nature, where the deposit of public funds, destined for the most useful of purposes, has been unwarrantably detained ; where the obligation to return them at sight has been eluded during such a length of time, it is just that we should allow to the plaintiffs not only the interest of the money, since the judicial demand, but also the full atnount of the damages ■ which the law permits to give.

■" It is, therefore, adjudged and decreed that the judgment of the District Court be co/ifirmed, and that in addition to the twelve hundred and' fifty dollars therein awarded to the appellees, they do recover five per cent, interest from the day of the j udicial demand, and ten per cent, damages, with costs.  