The opinion
GOLDTHWAITE, J.,
dissenting. — My judgment leads
to a different conclusion from that expressed as the opinion of a majority of the court upon the point decided • and also to a different opinion from that of Judge Ormond with respect to the joinder of all the directors composing the majority in the action.
*202 On both points, I find expressions elsewhere used which ■convey my impressions with sufficient brevity and precision. «If several are jointly bound to perform a duty, they are liable jointly and severally for the failure or refusal; and if it is a duty which a majority of the number is bound to perform, those who by their refusal prevent the concurrence of a majority, are answerable to the,party injured; that is, all those who constitute a majority — such majority committing the non feasance — violate the duty imposed, disobey the law, occasion the injury, and are accountable for it.”' [Ferguson v. Kennoull, 8 Clarke & F. Part. Ca. 289.] This is given as the law applicable to the members of a collective body who by law are required to perform a particular duty, and, as it seems to me, is not less clearly the law when the majority of a collective body does an illegal act. I entirely concur, that when a discretion is allowed, the party cannot be liable, no matter how injudiciously it may be exercised. But if one class of illegal acts is to be excused on the reason that the-illegality was a question of difficult solution, and upon which individuals might differ, it is not easy for me to see why the same reason should not cover all other illegal acts which,are' committed under a mistaken impression. I am not aware of any exception to the rule, that an illegal act accompanied with injury may be redressed by action.1
My impression is, the cases cited from Louisiana, and considered by the majority of the court as in accordance with their opinion, does not sustain the position assumed. I infer the salaries of the officers of that bank, as they are in most other private banks, were under the control of the direction, and not as here, regulated by a special enactment; if so, the-difference between that case and this is apparent. If the fact be otherwise, I am constrained to doubt the correctness' of that decision.
I.might extend this opinion, by citing other decisions to-sustain my views; but all those made in the courts of England on this branch of the science, are collected in the case I have quoted.