Opinion or the Court. — The only question I deem it necessary to decide on the present demurrer is, whether this suit is brought in the name of a person competent to maintain it. The declaration and writ described the plaintiff in the following manner: " The governor of the State of Arkansas, who sues for the use of Pinckard & Arnold, &c."
This suit is not brought in the individual name of the governor of the State of Arkansas, but in the manner above stated, by the style of office.
The administration bond upon which the action is founded was executed to John Pope, governor of the Territory of Arkansas, and his successors in office, in 1833, in accordance with the provisions of the 9th section of the Territorial Act of 1825. Ter. Dig. 50. The thirty-seventh section of the same act provides that " the bond to be given by the administrator may be put in suit by the party injured in the name of the governor of the territory to the use of the party injured." Ter. Dig. 64. And the fourth section of the schedule to the constitution of Arkansas declares that all bonds executed to the governor of the territory in his official capacity shall pass over to the governor of the State and his successors in office, for the use therein expressed, and may be sued for and recovered accordingly. Rev. Stat. 40.
In my judgment it is clear, that an action may be maintained if it is brought in the name of the governor of this State at the time it is commenced, and the only question is, Has this suit been so brought? The plain and obvious meaning of bringing a suit in the name of a public officer is, that it shall be in the name of the individual holding the office for the time being. He is a purely naked trustee for any party injured, — a mere conduit through which the law affords a remedy. The legal title is in the officer, and in his name alone can an action at law be maintained; and to that effect are adjudged cases. Brown v. Strode, 5 Cranch, 303; Wormley v. Wormley, 8 Wheaton, 421; Irvine v. Lowry, 14 Peters, 300; McNutt, Governor, v. Bland, 2 Howard, S. C. Rep. 9.
That this is the meaning of the legislature in using these terms is abundantly manifest from the fifteenth section of the Revised Statutes, under the title " Abatement," which provides that " when an action is directed or authorized by law to be brought by or in the name of a public officer, his death or removal from office shall not abate the suit, if the cause of such suit survive to his successor; but the same may be continued in the name of such successor as plaintiff therein." Rev. Stat. 59. Thus showing that the suit is to be brought in the individual name of the officer and not by his style of office.
This action is brought by using the style of office and not by using the name of the officer, and it can hardly be contended that it can be maintained in its present form. This may be said to be a mere technical objection as the plaintiff on the record cannot prevent the institution or prosecution of the suit, nor exercise any control over it, the real and only plaintiffs being the persons injured by a breach of the bond. To this it may be answered that the legal right to bring an action upon the bond is alone vested in the person exercising the functions of governor and his successors in office, to whom, in his individual name as governor, it is executed, and he alone or his successors in office, although naked trustees for others, can maintain an action on the bond. And this accords with the general rule of pleading, that the right of action at law is vested in the party having the strict legal title and interest. 1 Chitty, Pl. 3; 1 Bast, 497, 501; 7 Ib. 48 ; 5 Wend. 191; 9 Ib. 233.
I have seen no case establishing a different doctrine from that here laid down, and the cases, as far as my researches have extended, were all brought in the individual name of the officer, describing himself as holding the office. McNutt, Governor, v. Bland, 2 Howard, U. S. Rep. 9. Demurrer sustained.
Note. — The plaintiff obtained leave to amend; but subsequently dismissed the suit.