The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-05-09
supreme Court OF Louisiana,

| DJJILIET,
| OSCAR ARROYO.
| supreme Court of Louisiana.
Condensed pecisions-NEw ORLEANS, May 7, 1S49
In Of waTTano, inquire into the right BY
certain Directors Of Bank hold their Office where
alleged Illegal acts complained Of relate 10 their election,
which the REALTORS presided, they will be heard
| REALTORS. when they have disqualified themselves
by their misconduct in concurins and participating
! in such illegal acts.
| DUFILHo, Witt, EFT AL. u.s. PEERS SHAW
EFT AL. Appeal trom TIE Second District Court of
| N'W Orleans. .SLIDELL. J. Per currtQm
| The petitioners SEEK by the present proceeding
(which Is In the nature ot qH0 tUarrdHO,) TO Dust
the defendants, Peters and Others from the Director
ship of the Louisiana State Bank. They also ask
| mandamus commanding Vignie and others to issue
| advertisements for new election, they being TIN,
| persons who constituted the Board of Directors
prior TO the alleged illegal election, under color of
| which, Peters and others had assumed to act.
| All the Directors of the old Board, except two,
| have answered :" that the said board of Directors
| of the Louisiana Stale Bank, did not deem them
selves authorised from the return of the Judges of
election, for the election of Directors of said Bank
held the sub instant February, Si9,) to order
| new election of Directors 10 be made, and could
| not, therefore, issue advertisements for another
election, To be held wherefore they say they
submit 10 spch Judgment and mandate as the nature
OF the case may require, and as may be finally
dered III the premises The two members of the
| old Board, who did not join in this answer, are
members of the old Board who did not jnin in this
| answer, are members of the new Board, and, as
they claim 10 hold under the election, must be
considered virtually concurring in the position
taken by their associates III the old Board. The
whole of the former Board, therefore, must he
garded acqnescing in the validity of the election
| of the Board, and their continuance in power.
| 1t is obvious, them that the contest in this cause
| is between DnGIho, WiZ and Dupre, ON the one
| hand, and the newly elected Board on the other,
who, upon the face of the pieadings, are at least
| Directors de fdcto, under color of election.
| The first question which demands
sideraon is can the plaintiffs be heard as REALTORS
As the general rule, it may be conceded that, I'M
| der our legislation, any stOckholder has right 10
| inquire, by the remedy of quo rdrrdntO into the
| election Of those who assume to administer the
| poratlOn of which he is member But, while the
| defendants do not dispute the general rule, they
| contend that party may have acted as to
| der himself incompetent or disqualified to become
| reator. They argue . that, where the wrong
| complained of the result of the party's
misconduct or negligence, the Court will refuse an
application by HIM, or at his instance. That the
law will not admit any to play fast and loose
TO establish overturn the effect of his own
actions, as may prove most beneficial TO hm-if
| it suits him to take advantage of his own conduct
and say nothing-if it does not accord with his
views to declare his own conduct illegal, and avoid
| his own acts"
The authorities cited by the defendants fully sus-
conflicting decisions.
In Thomas King us. Clarke, Fast II, it was
observed, "the court have, indeed, on several oe
casions said, and said wisely, that they will 10.
listen 10 corpora.or who has acquiesced, or per-
haps concurred in the very act which he after
wards comes 10 complain Of when il suits his pur-
pose" In Rex ps. Siythe, 6 Barn. and Gus $40,
Abbott, G. j., said i" it has generally been consd
cred rule of corporation law, that person is not
TO be permitted TO mpeach q title conferred by an
l nh Ea bapn rod hat
those medately or Immediately derived from that
election But in order,' said he, " to prevent
any Misunderstanding upon this point, will add,
that if person should concur in an election, in
ignorance of some fact making it invalid, and
should afterwards come before the court and show
the objection, and that 1t has come 10 has kaowledge
since The election, and that it is a matter which
ought to be inquired into, would by no means
have it inferred from the decision in the present
case, that such an application ought not to be
| heard In the Queen Us. Greene, = Adop. and
Ellis, 4G3, Denman, c. j. observed, the principle
which precludes party, having acted the rela
tor did in this instance, from applying afterwards
to set the proceeding aside, is the same which pre-
walls in other eases, namely, that man shall not
take his chance Of inconsistent advantages And
Coleridge, Justice the occasion, assumed
it be the settled rule that shall not apply
TO the court relator, if he has concurred in the
rreguarty of which he complains See also
| Angel and Ames Corp. p. 107.
opinions would be followed in this country in qIes-
tons concerning municipal corporations, we have
no hesitation III recognizing their propriety ap-
piled 10 private corporations Such being the well
settled doctrine, 1t remains TO be considered how
far it is applicable TO the case at bar.
The petitioners allege that they Were appointed
commissioners of election for Directors Of the Bank
and that acting in that capacity they received
votes to which objection had been made. The
certificate, which they themselves signed on the
9Th of February shows that the defendants, who
now claim 10 be the duly elected Directors of the
Bank, obtained a plurality of the votes offered at
the election, and received by the plaintiffs them
selves in their capacity of Judges 1t is now
charged by the petitioners that a large portion of
the votes were not given according TO law, and
were given by persons not bona tide owners of the
shares But although objections, is alleged in
the petition, were made al the time 10 the reception
of those votes, the plaintiffs themselves, whose
duty il was to ascertain the disputed legality, re-
ceved them. Under such circumstances, we are
of opinion that they cannot be heard as REALTORS.
1t Is proper to observe that although The plain
ts commissioners, acting with the two other
commissioners. Hermann and Rochereau, received
, all the votes, Notwithstanding objections made by
the stockholders at the time, and signed the day
, Of election a certificate showing the number OF
votes given the respective candidates. the three
plaintiffs signed two days afterwards (but without
the concurrence of the other two commissioners a
declaration that they decline to certify or declare
either ticket elected But we cannot perceive how
this subsequent declaration DESTROYS the effect Of
their previous reception of the votes upon the CUES
! ton of their competency now 10 mpeach as rela-
tors, the legality OF those yOes I The declaration
Oh the 9Th stands in conflict with their acts on the