
    No. 7114.
    Louisiana Board of Trustees of the American Printing-House for the Blind vs. V. J. Dupuy et al.
    The affidavit of an appellee that liis interest in the suit is less than $500 will not defeat the appeal, when it appears by the allegations of the plaintiff’s petition, or his subsequent affidavit, that the amount involved is more than $500.
    Whore a number of persons constitute a common agent for a common purpose no one of them lias a right to compel the agent to render a separate account to himself. There should be but one proceeding to which, all persons in interest should be made parties, and. their rights determined in concursu.
    
    ^PPEAL from the Sixth District Court, parish of Orleans. Eightor,
    
    
      John A. Campbell and Merrick, Eace & Foster for plaintiff and appellant.
    
      Eicharclson & Magruder and Tlios. I-Iimton for defendants and appellees.
    
      F. Fvariste Mo'ise, curator ad hoc, for the American Printing-House for the Blind.
   On Motion to Dismiss.

The opinion of the court was delivered by

Spencer, J.

Plaintiff alleges in substance, that it is a legal corporation, organized in conjunction with similar corporations in other States, for the purpose of printing or procuring books for the blind ; that it is possessed of a fund, which by careful management has been more than doubled, and amounts now to something over ¡¡¡>32,000; that it was organized in 1859, and that the fund in its custody and control has been derived from donations of many charitably disposed persons who contributed sums ranging from five dollars to one hundred dollars in amount.

That the defendants, Dupuy, Hunton, Magruder, Richardson, and others, pretending that petitioner has failed to carry out the objects and purposes of its incorporation, within the time prescribed by its charter, claim that petitioner is bound to pay back to the original donors the sums, with accumulated interest, received from them ; that said Richardson & Magruder claim to represent as agents and attorneys in fact about one hundred of said donors; and to own, by right of reversion as aforesaid, over ten thousand dollars of petitioner’s said funds ; that said attorneys have entered into contracts with said donors, whereby they are to have one half of the amounts they may recover of petitioner, said attorneys agreeing to pay all costs and expenses of suits, etc.; that a Kentucky corporation, not in existence at the time of petitioner’s incorporation, but claiming the rights of a former corporation in said State, with which petitioner was to have acted in conjunction a.s aforesaid, has brought suit iu the United States Circuit Court for Louisiana against petitioner, and claims that petitioner is bound to pay over the whole of said fund to it; that in said suit the said parties represented by Richardson & Magruder and by Thos. Hunton are made defendants ; that said parties so made defendants claim by answer in said cause that they are donors of a large part of the funds in petitioner’s hands and entitled to recover it for the reasons stated.

Further represents that said Richardson & Magruder have instituted numerous and sundry suits against petitioner in different courts— some in justices’ courts and some in district courts, in behalf of and as representing various persons claiming to be donors as aforesaid ; that petitioner believes that said Richardson & Magruder bring these numerous and separate suits in different tribunals under the hope that they may find some judge who will sustain their pretensions, in which event all the suits would be brought before him ; that said Magruder & Richardson obtained a half interest in said claims by sending out circulars to the donors to which was a printed form of receipt and agreement to be signed, giving them one half the amount to be recovered as aforesaid ; that they claim to have such agreements with about one hundred donors, and a consequent interest of more than §10,000 in petitioner’s funds ; that they have disclosed the names of only a few of these donors represented by them; that much the larger portion of the donors of the said fund desire, as petitioner believes, that the same be devoted and applied to the purposes originally intended, and that the fund has now accumulated to an amount sufficient for effectively doing so ; petitioner charges collusion between the said Kentucky corporation and the said parties bringing said individual suits, and that there is an agreement between them to share the results of the suits in the circuit and State courts.

Petitioner further represents that if the donors of said funds have the right to withdraw them from petitioner, the same must be done in concursu, in a proceeding to which they are all parties, and upon rendition of account by petitioner; that the prosecution of said separate suits by individuals in different courts, without making the others interested in said funds parties, is illegal and oppressive, intended and calculated to waste and consume in useless litigation the fund, and to prevent its application to the charitable purposes contemplated; that petitioner is advised that the circuit court is without power to protect petitioner against said vexatious proceedings in the State tribunals, and that an injunction ought to issue to prevent the despoiling of said fund of $30,000 in petitioner’s possession, and to compel said defendants to litigate in some single form and contradictorily with all parties in interest the question of ownership and distribution of said fund. Wherefore petitioner prays an injunction against said parties restraining them from prosecuting against petitioner said separate, individual, and vexatious suits, until the termination of the suit in the United States Circuit Court, or some other suit with'proper parties, etc. Prays for such damages as may be proven.

The court a qua refused the injunction and dismissed plaintiff’s suit. From that judgment this appeal is taken.

Appellees move to dismiss the appeal for want of jurisdiction in this court ratione materias, and because the appellees “ have not separately or conjointly” any interest in this cause to an amount sufficient to give this court jurisdiction.

Messrs. Hunton, Richardson & Magruder supplement this motion by their several affidavits, to the effect that'they “have no present interest in any matter or thing set up in the petition of plaintiffthat upon certain conditions and contingencies they will be entitled to fees, etc., “but have no other or further interest in this litigation.” Per contra, the plaintiff and appellant makes oath that the matters involved exceed $500 in amount, etc.

Of course the jurisdiction of this court must be determined by the demands and allegations of plaintiff’s petition, which may be supplemented by affidavit as to the amount involved, etc. Of course the affidavit of appellees that they have no interest in the suit, or an interest less than $500, can not defeat the appeal, if the demands against them give this court jurisdiction. It will be time enough when the case is heard on its merits to decide what is the nature and extent of appellees’ interests, and of their responsibility to plaintiffs. If the defendant in a suit can defeat plaintiff’s appeal by simply swearing that he (defendant) has no interest in the suit, the right of appeal by a plaintiff would be a very vain and illusory one.

We think the subject matter in controversy in this suit is shown by the petition to be over $500, and within our jurisdiction. The gist of plaintiff’s action is this: That it is the possessor and custodian of a charity fund exceeding $30,000 in amount; that the defendants by illegal acts and conduct in interfering with and disturbing its possession and control of said fund will destroy it; that it is entitled to protection of said fund from the illegal acts of defendants, etc. These allegations, supplemented by plaintiff’s affidavit, certainly give us jurisdiction.

The motion to dismiss is overruled.

On the Merits.

The allegations of plaintiff’s petition are set out in substance in •our opinion on the motion to dismiss, and need not be here repeated.

The fifth section of plaintiff’s charter provides that when the sum of $25,000 is raised by it and the co-operating organizations in other States, the funds collected by the Louisiana Board shall then be remitted to the Kentucky corporation at Louisville, to carry on said printing-house for the blind ; “provided that should said sum of $25,000 not be raised within seven years from date of this incorporation, or said publishing-house-not be established within nine years from said date, then the donations and contributions received, together with the interest thereon accrued, after deducting' expenses of the corporation, shall be returned to the contributors and donors thereof.”

Under this act of incorporation contributions were solicited and some $16,000 raised by the Louisiana Board in sums ranging from $5 to $100. The fund thus raised in 1859, 1860, and 1861, has been kept at interest by the Board, and has now more than doubled itself.

A number of suits have been commenced by different persons in different courts, against the plaintiff, to compel it to return their contributions, on the ground that the time has expired for building said printing-house according to the charter, and it has not been built, and that by the terms 'of the act the contributors are entitled to a return of their donations with the accrued interest. A Kentucky corporation, claiming to be the organization referred to in the Louisiana charter, has commenced suit against plaintiff in the United States Circuit Court, to compel the delivery of the whole fund to it. Interventions and cross-bills have been filed in said suit by Dupuy and other contributors asserting their rights upon the fund in plaintiff’s hands. Plaintiff truthfully alleges that it is literally being torn to pieces by suits — some in magistrates’ courts, some in different district courts, and some in the Federal courts. It alleges that such proceedings are oppressive and illegal, and asks that the plaintiffs in said various suits in the State courts and Richardson & Magruder, who claim to be the agents and attorneys of said parties and of about one hundred others, be enjoined and restrained from such proceedings and be required to proceed in this or some other single suit, contradictorily with all parties in interest. It is said in reply by defendants that there is no privity of contract among the various contributors to this fund, and that each has a separate distinct and independent demand against the plaintiff, and therefore a perfect right to sue it separately.

We can not concur in this view of the case. The charter by its very terms, and as the suing donors themselves allege, constituted a contract of mandate between the contributors and the corporation. Those who gave their money did so for the uses and purposes and upon the terms and conditions therein written. The corporation became the common mandatary of the donors, and the rights and obligations of all the parties are to be ascertained and determined by reference to its provisions. As we have seen, the fifth section expressly provides that in the event of a failure to carry out the objects of the mandate, the corporation, “ after deducting its expenses,” shall return the fund to those who gave it. This clearly requires and demands an account; and surely it will not be contended that where a number of persons have constituted a common agent for a common purpose each of them can compel a separate accounting to himself. In such a case the agent owes but one account. In the nature of things, it would be impracticable to determine the pro rata of the numerous claimants otherwise than in concursu. They all have a common interest in the expense account of the corporation, and a like interest in testing the reality and amount of their respective claims upon the common fund. Any other course would consume the fund in costs of litigation; for the corporation would have to establish its expenses account in every suit, and for its own protection, and that of other contributors, would have to employ counsel to scrutinize each separate claim in the hundreds of suits that would be brought. We have seen that the Louisville corporation is claiming the whole fund ; while numerous suits are brought in different State courts by different persons claiming small and fractional amounts thereof. This court, in the absence of express legal provision, has the power to proceed and decide according to equity. C. C. 21; 1 An. 133. We think the plaintiff’s petition discloses a cause of action, and that the facts in this record entitle it to relief.

But while the plaintiff has rights entitled to protection, it has also obligations which it is bound to fulfill. The donors of the funds in its hands have an undoubted right to demand and require an account of its stewardship ; and if by the terms of its charter the corporation has failed to accomplish the object of the trust, it must restore the fund to those who gave it. We shall therefore remand this cause.

It is therefore ordered, adjudged, and decreed that the judgment appealed from is reversed, and plaintiff’s injunction is reinstated. It is further ordered that this cause be remanded to be proceeded with as follows: That the plaintiff, “the Louisiana Board of Trustees of the American Printing-House for the Blind,” do within sixty days from the filing of this decree in the court below render a full account of its receipts and expenditures of the fund in its hands ; that notice of the filing of said account be advertised in two daily papers of New Orleans for sixty days, and calling upon all persons claiming rights to or upon said fund to come forward and assert the same within said delay ; that at the end of said delay the court a qua proceed to try and determine the rights and claims of all parties appearing, and to render judgment as their rights shall require; costs of this appeal to be paid by appellees.  