New Orleans daily crescent. [volume] ([New Orleans, La.]) 1851-1866, 1859-11-30
~; 8 N n ;5ciiyered g MS. r. johnson as

I son u Co., be delivered 70 Mrs. = johnson as
| natural tutfix
Bsansts y CO., appeueees, vs. AZ Ro,,se, Gppel-
| f5rls,ion q the Court by Judge Buchanan. Judg-
mont affirmed with costs.
B,sekse,. H Payne, use Of, ETC., VS.. Greenwood
xs;iore e2ss Appeal from Sixth District Court.
Opinion Of the Court BY Judge VOORHEES,. As the
plaintiff pretentons are defeated by the provisions
III articles 1855 2256, and 24l5 Of G. @. The real
debtor being dead the resource of probing his con.
science i At an end, even under the hypothesis Of
the right of plaintiff to proponnd to the administra
tor interrogatories facts and articles. Be this
it may there is yet another objection to plaintiffs
demand as brought in the present suit The de-
fendant may be indebted to the estate Of D. s
Miller deceased against whom the plaintiffs claim
may be actionable, but the latter must hquidate
his rights against the representative of the estate
and not against party who has Illegally received
funds belonging to the estate As q Judgmen..
against the present defendant would not protect
him against the suit Of the administrator nor could
the plea Of res judicdtd apply, as between the
plaintiff and administrator, these proceedings can
not be sustained. Judgment affirmed Win COSTS.
Gdspard James, adn,inss,'dtor. successor ssa0t
John S. Thompson, plaintiff n rue, agtea az
Appeal from Second District Court Opinion Of the
| Court BY Judge Cole.-The cause Of controversy
is the same as IN the suits Nos 6z0a ana 5000 Jus'
decided.
It was in the flrtherance of justice that the
Court should not order the money to be delivered
to one party, when there were several contestlng
for the same, until the respective rights Of all the
claimants were adjudicated upon. Judgment
affirmed.
German Euangelical Congregation, appel
liant vs.. H Pressser. appellee, No. 62ls-Ap-
peal from Fourth District C0urt-Five Judge
present Opinion Of the Court delivered a oy
BY the plaintiff from Judgment upon rule
dismissing the suit. The question turns upon
the validity of supposed resolution of the society
ordering this suit to be discontinued.
It appears to be conceded by plaintiffs counsel
that the corporation can be bound by joint reso-
luton of the counsel and congregation. The reso-
luton said to have the effect Of discontinulng the
suit was passed under the following circumstances
Under the bylaws Of the corporation, the Council
(who seem to be the detaners of the powers of the
corporation, and consisting of seven persons) are
elected by the vote Of the members Of the congre-
CATION upon the nomination of the Council going
tof office. The old Council are to nominate
not less than fourteen persons, and not more than
twenty-one, out of whom the seven councilmen or
wardens for the ensuing year are to elected. The
officers Of the Church Council are: President,
Secretary and Treasurer. These officers required
to be present at the meetings Of the Church Coun-
Gil and Congregation. meeting having been
called, in accordance with the bylaws, for the
election Of new Council, or Board of Wardens, to
take place on the 2sth day Of November, 1858, and
| having assembled accordingly, the President pro-
ceeded to organize the meeting and announce that
| it was held for the purpose Of an election some
members insisted on passing some resolutions pre-
yious to their election. Kaiser, the President, de-
clared them out Of order. An appeal was made to
the congregation, who decided in favor Of the res
olnfions. The Council continued, it seems, intent
upon proceeding with the election, and received
some votes. Much disturbance then arose. Kaiser,
the President, directed some police officers, whose
presence he had procured to arrest certain persons
disturbing the congregation. They paid no atten-
ton to his request Presently, Pressler, the de-
PENDANT, came in, and at the instance of some Of
the congregation, he directed the police officers to
arrest Kaiser and the other officers of the Council,
with one or two of the councilmen, making five in
ALL. The latter took with them the votes Of the
corporation, and were locked up at the guard
house by the police The congregation then, in the
| absence of the old Board, proceeded to organize
| the meeting, and passed the resolution directing
the discontinuance Of this suit. They also elected
q new Board of Councilman or Wardens.
Ona writ of quo acd,7d,t0 issued at the instance
of the old Board, the new election was declared to
be illegal. The District Judge, being of opinion
that the resolution was in accordance with the
wishes of large part of the cation, directed
the dismissal of the suit and the plaintiff appeal
The suit having been regularly instituted cannot
be dismissed without resolution Of the corpora
ton. The congregation alone, under the bylaws
and charter, have no such power. A majority of
the council must be present, and the resolution
must be entered by the officers of the Council
upon the books Of the corporation. Therefore, the
| President and members of the Council were lille
| gally removed. There were no persons present to
conduct the election to give validity to the
lutons Of the congregation. The concausu,1e una-
ve7aatis was wanting. 1t is quite clear that the
paper circulated among the members Of the corpo-
ration and signed BY the members, however nu-
merously, cannot supply the place of resolution,
which can only be passed by the corporators or
gained as body, in conformity with the bylaws
and charter. However Improbable this sort of
litigation may be, the Courts cannot regard or
know the wishes Of the majority unless expressed
in valid form. See case Of st. Marys Church,
s. & Rawle $50.
Judgment of Lower Court avoided and reversed,
and case remandeds