Hart vs. St. Charles Street Railroad Company. terms, different from those appearing in the resolution of the Board of Directors. He could not change the action of the Board by adopting phraseology, not authorized by it. Throwing aside verbal criticism, and inquiring solely what the parties must have understood by the articles of association, by the resolu tions of the Board providing for an increase of stock, and for the time and manner in which the privilege of taking additional stock should be exercised, we think the attempt of the plaintiff to avail herself of this privilege was properly frustrated. Why should the Directory have extended the time beyond the sixty days for taking or subscribing for the stock, if it was only designed to give parties an additional thirty days to say whether they would take it? Why should parties need additional time to say whether they wanted additional stock, if saying was the only thing to be done. The stock had become valuable. The original subscribers had carefully guarded their right to additional stock, proportioned to their original subscriptions, if an increase should ever be authorized. It was secured to them as a privilege. Each one would presumably desire to avail himself of this privilege, but every one might not be prepared to pay for the stock at once. The sixty days was given, and must have been given, not as a period of deliberation for each one to determine whether he would avail himself of this privilege, but as a period of preparation so that he could avail himself of it. So too of the extension of thirty days beyond the time first accorded, and then, in order to afford another and last opportunity, a further extension of fifteen days was granted-evidently for the purpose of enabling parties to do something else, and something more, than merely declaring that they would take the stock, and pay for it when the condition of their finances permitted. It required no delay, and no extension beyond the sixty days fixed by the articles as the time of notice, to enable parties to say that. It was not until the last day of the last extension that the plaintiff verbally notified the Company of her intention to take the additional stock, and when expressly informed then that she must pay within the time of the last and third extension, made no effort to comply with that just requirement. It was not until seven days after the expiration of the last extension that a formal tender was made of the money. Her rights were then lost. Therefore It is ordered and adjudged that our former decree is annulled and set aside, and that the judgment of the lower court is affirmed with costs. SPENCER, J. I dissent for the reasons stated in the original opinion. MARR, J. I adhere to the opinion rendered in former hearing. Hart vs. St. Charles Street Railroad Company, EGAN, J. I adhere to the views of this case presented in the dissenting opinion prepared by me when the case was first before us. That opinion was, however, prepared without having the record before me st the time, and I was thus led into a possible error of fact which does not affect the principles of the opinion, but which, while it strengthens the vie of the case I then took, I still prefer to notice. I refer to the fact that instead of the terms of subscription being certainly as they would ordinarily be in law, cash, in the absence of mention of a time being given for pay ment, subscribers for the new stock were required to pay eight per cent interest after the expiration of the sixty days given by the terms of the charter. This either means, and I still entertain that view, cash, with the addition of interest calculated from that time to the time of taking the stock, or, at most, a credit of sixty days more upon condition of paying eight per cent interest on the amount. Either view would exclude all right in the plaintiff, who had assumed no obligation capable of being enforced in law to pay the eight per cent conventional interest of which nothing but written evidence is receivable under our law, C. C. art. 2924. and who therefore had no conveying right to the stock. I concur in the decree against the plaintiffs' rights and in favor of defendants. No. 5973. ELIAS GEORGE VS. B. F. TAYLOR. Where a defendant who is enjoined from collecting the fees of an office, bonds or of the injunction, the surety on the release bond will be bound for the who: amount of the judgment rendered in favor of the plaintiff on account of said fees, unless there be an agreement between the plaintiff and the surety lessering the surety's liability. A PPEAL from the Sixth Judicial District Court, parish of Tangipahoa. H. H. Bryan and E. F. Russell for plaintiff and appeller. The opinion of the court was delivered by DEBLANC, J. On the 16th of March, 1870, Elias George was ap pointed as the Recorder of the parish of Tangipahoa. One Alpheus G. Tucker-the then incumbent-refused to yield and retained that office for ten months after plaintiff's appointment. It was only after the rendition of a judgment declaring Tucker an intruder, that George was inducted into said office. Pending the intrusion suit, Tucker was enjoined from collecting the fees of the disputed office, and released that injunction on a bond subscribed by him, and by B. F. Taylor and others, as his sureties. After he had filed his suit to recover the office of Recorder of mort gages, plaintiff-by a supplemental and amended petition-claimed, George vs. Taylor. from Tucker, sixteen hundred dollars, for fees alleged to have been collected by him during his intrusion, and for damages averred to have been caused by said intrusion. That demand was partly allowed: George obtained judgment against Tucker for one thousand and fifty dollars. Taylor-the defendant in this case-appealed from said judgment, which was affirmed by this court. Is Taylor's liability as a surety on the release bond fixed by that decree and the fruitless attempt to execute it against Tucker? It would, undoubtedly, have been fixed by that decree, were it not that-during the pendency of the appeal taken by Taylor and of the present suit, the parties through their attorneys-entered into an agreement, in and by which it was stipulated that-if the judgment appealed from by Taylor were decided against him, "he would pay such amount of damages as said George may prove in this case." These are the very words of that agreement. Taylor's appeal was decided against him; this suit-which had been suspended during the pendency of the appeal-was proceeded in, and a judgment of one thousand dollars rendered against Taylor, as the surety of Tucker. From that judgment-as from the other he has appealed, and prays its reversal on several grounds, most of which have been passed upon and finally decided on the trial of his first appeal. For one reason, we are constrained to remand this cause: the judgment of the lower court, which could have been obtained and based on positive proof, on a detailed statement of the acts passed, of the work done by Tucker during his intrusion, or by a production of said acts and work, and by its appreciation under the fee bill, was based on exclusively the declarations of witnesses as to what the office had brought before and since the intrusion, on Tucker's extra judicial and unsworn admission that said office was worth one hundred dollars per month, on uncertain opinions and vague estimates, to the introduction of which defendant objected, on the ground that Tucker's admission could not bind him, and that said opinions and estimates did not constitute the best evidence of the official work done and of the amount of fees received by Tucker. Though that best evidence was accessible to, within the reach and in possession of plaintiff, defendant's objection was overruled, and he excepted. His exception was well taken, and-for this and no other reason he is entitled to a new trial of this controversy. It is therefore-ordered, adjudged and decreed that the judgment of the lower court be, and it is hereby annulled, avoided and reversed, and this case remanded to the lower court to be proceeded in according to law and the views herein expressed; the costs of the appeal to be paid by plaintiff. Calhoun vs. Mechanics' and Traders' Bank. No. 6553. M. M. ADA CALHOUN VS. MECHANICS' AND TRADERS' BANK. A married woman will not be bound by her mortgage note executed by her autherized agent, when it appears that she was not authorized by the judge of her domicile to empower the agent to execute such a note, unless the holder of the note shows affirmatively that the consideration of the note inured to her separ ate benefit. The agent of a widow, acting solely in virtue of a mandate executed by her wai she was a married woman, can not bind her to any greater extent, as a widow, than he could have bound her as a married woman. To maintain a proceeding via executiva against the property of a married woman in virtue of a mortgage executed by her agent, either the act of the judge authorizing her to so empower the agent, or her ratification of the agent's an after she became a widow, or the fact that the debt inured to her separate here fit, must appear in evidence in the form of an authentic act, or of a judgment of some competent court. The court can not, of its own motion, change the form of a proceeding from a executory, to an ordinary one. Such a change can not be made without the assent of the seizing creditor. The executory proceeding may be arrested by injunction, and if, on being required, the defendant prove any of the facts set forth in article 742 of the Code of Prac tice, the order of seizure and sale will be revoked, and the plaintiff condemned to pay costs. A PPEAL from the Ninth Judicial District Court, parish of Grant. F. W. Baker and W. S. Benedict for plaintiff and appellee. His Honor, FRANCIS A. MONROE, judge of the Third District Court for the parish of Orleans, called upon to supply the place of Chief Justice MANNING, recused, and to aid in determining the cause, pronounced the judgment and decree of the court. MONROE, J. On the 27th of December, 1866, Mrs. Mary Smith Calhoun and her husband, Meredith Calhoun, appeared before the U.S. Consul in Paris, France, and executed an act of procuration by which they appointed their son, William S. Calhoun, their agent and attorney in fact, and authorized him to take charge of, and conduct, all business affairs pertaining to them in America, whether the same relate to real or personal property, or be of any other nature or kind whatsoever; further authorizing him "to sell, assign, and transfer any and all real estate, lands, tenements, and hereditaments, to them, or either of them belonging," and to mortgage or lease the same; "to make, execute, acknowledge, and deliver any contracts, agreements or covenants, and to sign, seal and deliver all conveyances, deeds, leases, mortgages or other instruments of writing necessary for the execution of the power" granted to him. In 1869 Meredith Calhoun died in Paris, where he and his wife had Calhoun vs. Mechanics' and Traders' Bank. continued to reside, and, upon the 12th of May, 1870, Wm. S. Calhoun, the agent above mentioned, claiming to act under and by virtue of the power of attorney referred to, as the agent of his mother, executed three promissory notes of $5000 each, dated at New Orleans, May 12th, 1870, and made payable to his order as agent, upon November 1 and December 1, 1870, and January 1, 1871, respectively, which notes were indorsed by him, in conformity to their tenor, in blank, and were subsequently indorsed by one James N. Nevin. In order to secure the payment of these notes, the said Wm. S. Calhoun, as agent, executed a mortgage upon four plantations in the parish of Grant, being a portion of Mrs. Calhoun's paraphernal estate; and known as the "Smithfield," "Farine," "Mirabeau," and "Meredith" plantations, respectively. This act sets forth that said Wm. S. Calhoun appeared before P. C. Cuvellier, notary, in New Orleans, May 14, 1870, and declared : "That he was the agent and attorney in fact of his father, Meredith Calhoun, who has since died, to wit: on or about the 14th of May, 1869, and as the attorney in fact of his mother, Mary Smith Calhoun, now the widow of said Meredith Calhoun, as will appear by an act of procuration from said Meredith Calhoun to said appearer, passed before me notary September 23, 1865, and by another act of procuration, executed jointly by said Meredith Calhoun and wife, at Paris, France, under date of the 27th of December, 1866, certified to by the Consul of the United States at Paris, aforesaid, and annexed to an act in this office, dated February, 4th, 1869. "That said Mary Smith Taylor, widow of said late Meredith Calhoun, owns as her separate paraphernal property those certain plantations situated in the parish of Rapides aforesaid, hereinafter more fully described, the administration of which she has resumed and confided to the said appearer as her agent and attorney in fact. That for the purpose of working and successfully cultivating the said plantations during the current year, it has become necessary for said appearer in behalf of his said constituent to procure advances in money and supplies, which said advances James N. Nevin, merchant of this city, has consented to make to an amount not exceeding the total sum of $15,000." Further proceeding, the act recites the delivery of the notes mentioned to the said Nevin, and purports to mortgage the four plantations belonging to Mrs. Calhoun in favor of any holder or holders of said notes “in order to secure the payment of said notes and all interest," etc., and also "any and all further advances which have been or may be made by said J. N. Nevin to said Mrs. Calhoun," etc. In April, 1875, defendants herein obtained from the district court sitting for the parish of Grant an order for the seizure and sale of said |