(Spoitobd, J. and Lea, J., dissenting.) Tho petition states that the property was adjudicated to Robert Howes at the first auction sale for the sum of five thousand dollars, all of which will more fully appear by referenced the proees verbal of sale, hereto annexed for greater certainty. But the proees verbal states that the property was adjudicated to Robert Howes, for the minor children of John Foulhes. And this is’ confirmed by the evidence of the auctioneer, who produced on the trial the card handed to him at the time of adjudication, with the name of the purchaser written on it, as follows:
“ Tutor, Robert Howes, for the minor children of John Foulhes
This is a variation between the allegata and the probata which, in so rigorous a proceeding as that upon a 'folie encMre is fatal to the action. See the observations of the court in Guillote v. Jennings, 4th Annual, 242.
But it is said that Howes was without legal authority to purchase for his wards, and that the adjudication is to be'considered as made to himself personally, under Article 2693 of the Code. We think that, in order to extend the operation of this Article to the granting of damages against the party who has made the bid, in the name of another, which is the object of tho present action, there should be bad faith on the part of the bidder, or at least a want of that care which a good father of family would have used. But the judgment of this court pronounced in the May term of last year between the same parties, is a sufficient voucher for the good faith of Howes in making1 the bid in question. We refer to that decision for the facts of the case. The solo ground upon which the defendant is charged with personal liability’1, is in the words of Article 2693, that he was “ without sufficient authority to bind the minors, in whose name he bid at the auction sale. And the want of authority is inferred from the decision of this court upon the re-hearing of the former case just mentioned, pronounced last January; which held that the tutor should have been authorized to make the purchase by a family meeting previously to the sale. But upon this point .of law, this court was divided, two out of the five judges holding the contrary doctrine, namely, that the consent of the family meeting might be obtained after the purchase. And this had been the doctrine of the majority of the court last year, when the case was first decided. Under these circumstances it seems unreasonable to mulct tho defendant in damages for having erred upon a matter of law upon which this court, the expounders of the law in the last resort,-, has decided both ways. In other words, we are asked to punish the defendant for that which this court, as constituted last May, declared to be a legal act; and which is only now held ille-gal, because of the resignation of the two judges and the election of two others in the interval between the petition for a re-hearing of the first judgment, and the decision of that application for re-hearing1.
The circumstances of this case exclude the demand of tho plaintiff.
*450The judgment of the District Court is, therefore reversed ; and it is ordered and adjudged that there be judgment for defendant with costs in both courts.