Rikgo, Chief Justice,
delivered the opinion of the Court:
The plaintiffs, by their assignment of errors, present as error in the proceedings and judgment of the Circuit Court more than thirty matters, which, or as many of them as may be deemed material, will be considered, and the questions arising upon them disposed of by the court.
The first question arising upon the record and assignment of errors is this; is the declaration sufficient inlaw to enable Conway, as Auditor of Public Accounts of this State, to have and maintain this action against the plaintiffs in error? In considering this .question, we will first examine and dispose ofthe several matters specially stated in the demurrer to the declaration. The first ground of demurrer, so stated, denies the legal right of the Auditor of Public Accounts to sue in his individual name and official character upon the bond mentioned in the declaration. This right depends upon the provisions contained in the Statute approved Nov. 8tb, 1836, “ entitled an act directing in what courts and manner suits may be commenced by and against the State, and for other purposes,” which was in full force, on the 7th day of September, 1838, when this action was commenced. See Acts 1836, p. 195. The first section, of said act, declares “ that it shall and may be lawful for the Auditor of Public Accounts ofthe State of Arkansas, to sue in the Circuit Court for any demand which the people of the State may have a right to claim; and to be sued and to sue, to plead and be impleaded, to answer and be answered, to defend and be defended, in said Circuit Court, in the name of the Auditor of Pub, lie Accounts for the State of Arkansas.” The right of the Auditor to sue in his own name and official character, upon a bond payable to the Governor, and his successors in office, by virtue of the provisions of the statute above quoted, was made a question before this court, in the case of Conway Auditor, &c., vs. Woodruff, et als., decided at the last term, between which, and the case under consideration, no essential difference is perceived or believed to exist in regard to this question; and it was then held, that an action so brought, could be legally maintained, and we have not, as yet, discovered any reason to doubt the correctness of that decision, or the reasons upon which it is based, but no question asto what averments in the declaration are in such cases necessary to show the right of the people, or interest of the State, to the demand in suit, was, in that case, discussed or examined by the counsel, or the court. The authority of the Legislature to make the enactment, and the right of the Auditor derived from it, to maintain the action in his own name and official character, upon a contract or bond made directly payable to the Governor and his successors in office, being the only questions material to the present case, then discussed and decided, the court deemed it unnecessary-to discuss the question then, as it was not adverted to, or relied upon, by the counsel for the defendants, and was not important, inasmuch as the judgment of the Circuit Court must have been affirmed upon a different ground, whatever might have been the result upon such investigation; and, therefore, it was silently passed over. But the same question arises on the demurrer to the declaration in the present case, and the plaintiffs in ■error insist that the declaration wholly fails to show any interest whatever of the State, or people, in the bond sued on, or the money demanded, and sought to be recovered, by the suit. It is therefore important to ascertain what legal right the plaintiff has shown, in the State, or people of the State, to claim the debt demanded of the plaintiffs in error; for it cannot, in our opinion, be denied that the Auditor’s right to sue or maintain the action under the statutory-provisions above quoted, upon the interest which the State or people have in the debt, or thing demanded, and their right to claim the same, and his right to sue is expressly limited to “ any demand which the people of the State have a right to claim;” and, therefore, the people’s interest in, and right to claim the demand sued for, or sought to be recovered, must appear by some appropriate averment in the pleadings to enable him to maintain the action. Does it so appear from any thing contained in the declaration before us, that the State has any interest in, or right to claim the demand exhibited in this action? In our opinion it does not. The action appears, by the record, to be founded on the official bond of Taylor, as Sheriff of the county of Pulaski, executed by him, and his securities, to John Pope, Governor •of the Territory of Arkansas, and his successors in office, and the demand claimed by the Auditor, for the use and benefit of the State, is the penalty of said bond, a copy of which, together with the condition thereunder written, appears to have been given as oyer, and filed as part of the record of this case, which was accepted as oyer by the plaintiffs in error, who thereupon filed their demurrer to the declaration. The only additional averments in the declaration, material to be noticed, are, that the plaintiff is the Auditor of Public Accounts of the State of Arkansas, duly elected, commissioned, and qualified, •as the law prescribes; that he, in his.official character as Auditor of Public Accounts for the State of Arkansas, sues for the use and benefit of the State, and that by virtue of the statute, in such case made and provided, an action hath accrued to him as Auditor aforesaid, “ to have, demand of, and sue the said defendants, for the use and benefit of the State of Arkansas, for the sum of fifteen thousand dollars above demanded.” Do these facts, in themselves, in any form in which they can be presented, admitting them all to be true, establish any legal right in the people of the State, to claim the debt demanded by the Auditor for the use of the State ? Certainly they do not; for the obligation of the defendants set out in the declaration, is not to the State, nor is the State alone beneficially interested in it; the right to sue upon it, it is true may accrue to the State in like manner as to individuals, and when this action was commenced, the Auditor, if he had elected to do so, was at liberty to cause suit thereon to be prosecuted in the name of the Governor, for the use of the State, precisely as individuals could do for their own use; but the statute authorizing suits to be prosecuted in the name of the Auditor of Public Accounts for the State of Arkansas, “ for such demands as the people of the State have a right to claim,” is in derogation of the common law, and only gives the right to sue in the name of the Auditor in cases where the State has a legal right to the subject matter of the demand; and, therefore, upon every principle of law, such right must appear on the face of the pleading, otherwise the case cannot be considered as within the statute, and the omission will be fatal on demurrer, in arrest of judgment, or on error, because it omits to state any title or cause of action at all in the State, and cannot therefore be regarded as a title defectively stated, and therefore, as no legal liability on the part of the defendant below to pay the money to the State, which the Auditor claims of them for the use of the State, is shown in the declaration, the demurrer thereto was for this reason well interposed, and ought to have been sustained whether the defect was specially stated in the demurrer or not.
The second matter specially stated in the demurrer as a ground of demurrer, is within the principle decided by"this court,' in the case before mentioned, of Conway, Auditor, &c., vs.
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Rikgo, Chief Justice,
delivered the opinion of the Court:
The plaintiffs, by their assignment of errors, present as error in the proceedings and judgment of the Circuit Court more than thirty matters, which, or as many of them as may be deemed material, will be considered, and the questions arising upon them disposed of by the court.
The first question arising upon the record and assignment of errors is this; is the declaration sufficient inlaw to enable Conway, as Auditor of Public Accounts of this State, to have and maintain this action against the plaintiffs in error? In considering this .question, we will first examine and dispose ofthe several matters specially stated in the demurrer to the declaration. The first ground of demurrer, so stated, denies the legal right of the Auditor of Public Accounts to sue in his individual name and official character upon the bond mentioned in the declaration. This right depends upon the provisions contained in the Statute approved Nov. 8tb, 1836, “ entitled an act directing in what courts and manner suits may be commenced by and against the State, and for other purposes,” which was in full force, on the 7th day of September, 1838, when this action was commenced. See Acts 1836, p. 195. The first section, of said act, declares “ that it shall and may be lawful for the Auditor of Public Accounts ofthe State of Arkansas, to sue in the Circuit Court for any demand which the people of the State may have a right to claim; and to be sued and to sue, to plead and be impleaded, to answer and be answered, to defend and be defended, in said Circuit Court, in the name of the Auditor of Pub, lie Accounts for the State of Arkansas.” The right of the Auditor to sue in his own name and official character, upon a bond payable to the Governor, and his successors in office, by virtue of the provisions of the statute above quoted, was made a question before this court, in the case of Conway Auditor, &c., vs. Woodruff, et als., decided at the last term, between which, and the case under consideration, no essential difference is perceived or believed to exist in regard to this question; and it was then held, that an action so brought, could be legally maintained, and we have not, as yet, discovered any reason to doubt the correctness of that decision, or the reasons upon which it is based, but no question asto what averments in the declaration are in such cases necessary to show the right of the people, or interest of the State, to the demand in suit, was, in that case, discussed or examined by the counsel, or the court. The authority of the Legislature to make the enactment, and the right of the Auditor derived from it, to maintain the action in his own name and official character, upon a contract or bond made directly payable to the Governor and his successors in office, being the only questions material to the present case, then discussed and decided, the court deemed it unnecessary-to discuss the question then, as it was not adverted to, or relied upon, by the counsel for the defendants, and was not important, inasmuch as the judgment of the Circuit Court must have been affirmed upon a different ground, whatever might have been the result upon such investigation; and, therefore, it was silently passed over. But the same question arises on the demurrer to the declaration in the present case, and the plaintiffs in ■error insist that the declaration wholly fails to show any interest whatever of the State, or people, in the bond sued on, or the money demanded, and sought to be recovered, by the suit. It is therefore important to ascertain what legal right the plaintiff has shown, in the State, or people of the State, to claim the debt demanded of the plaintiffs in error; for it cannot, in our opinion, be denied that the Auditor’s right to sue or maintain the action under the statutory-provisions above quoted, upon the interest which the State or people have in the debt, or thing demanded, and their right to claim the same, and his right to sue is expressly limited to “ any demand which the people of the State have a right to claim;” and, therefore, the people’s interest in, and right to claim the demand sued for, or sought to be recovered, must appear by some appropriate averment in the pleadings to enable him to maintain the action. Does it so appear from any thing contained in the declaration before us, that the State has any interest in, or right to claim the demand exhibited in this action? In our opinion it does not. The action appears, by the record, to be founded on the official bond of Taylor, as Sheriff of the county of Pulaski, executed by him, and his securities, to John Pope, Governor •of the Territory of Arkansas, and his successors in office, and the demand claimed by the Auditor, for the use and benefit of the State, is the penalty of said bond, a copy of which, together with the condition thereunder written, appears to have been given as oyer, and filed as part of the record of this case, which was accepted as oyer by the plaintiffs in error, who thereupon filed their demurrer to the declaration. The only additional averments in the declaration, material to be noticed, are, that the plaintiff is the Auditor of Public Accounts of the State of Arkansas, duly elected, commissioned, and qualified, •as the law prescribes; that he, in his.official character as Auditor of Public Accounts for the State of Arkansas, sues for the use and benefit of the State, and that by virtue of the statute, in such case made and provided, an action hath accrued to him as Auditor aforesaid, “ to have, demand of, and sue the said defendants, for the use and benefit of the State of Arkansas, for the sum of fifteen thousand dollars above demanded.” Do these facts, in themselves, in any form in which they can be presented, admitting them all to be true, establish any legal right in the people of the State, to claim the debt demanded by the Auditor for the use of the State ? Certainly they do not; for the obligation of the defendants set out in the declaration, is not to the State, nor is the State alone beneficially interested in it; the right to sue upon it, it is true may accrue to the State in like manner as to individuals, and when this action was commenced, the Auditor, if he had elected to do so, was at liberty to cause suit thereon to be prosecuted in the name of the Governor, for the use of the State, precisely as individuals could do for their own use; but the statute authorizing suits to be prosecuted in the name of the Auditor of Public Accounts for the State of Arkansas, “ for such demands as the people of the State have a right to claim,” is in derogation of the common law, and only gives the right to sue in the name of the Auditor in cases where the State has a legal right to the subject matter of the demand; and, therefore, upon every principle of law, such right must appear on the face of the pleading, otherwise the case cannot be considered as within the statute, and the omission will be fatal on demurrer, in arrest of judgment, or on error, because it omits to state any title or cause of action at all in the State, and cannot therefore be regarded as a title defectively stated, and therefore, as no legal liability on the part of the defendant below to pay the money to the State, which the Auditor claims of them for the use of the State, is shown in the declaration, the demurrer thereto was for this reason well interposed, and ought to have been sustained whether the defect was specially stated in the demurrer or not.
The second matter specially stated in the demurrer as a ground of demurrer, is within the principle decided by"this court,' in the case before mentioned, of Conway, Auditor, &c., vs. Woodruff, et als., where it was held that the failure of the officer to obtain the approval of his official bond, as required by the statute, does not in any manner affect the liability of the officer and his securities in such bond, if it is in every thing else legally executed and by them delivered as their obligation, and therefore the omission to set forth such approval in the declaration is not a defect available upon a general demurrer.
The third objection asserts that there is a material variance between the obligation given on oyer and that described in the declaration, but fails to point out the particular variance, and no such variance as would be fatal to the declaration on general demurrer is perceived by the court.
The fourth objection rests upon the assumption that Benjamin Williams, who is alleged to be a co-obligor, and not sued with the defendants below ought to have been joined in the suit, and this, if the additional fact that he is still alive appeared in the declaration, would, by the common law, be a good ground of general demurrer, and perhaps it may be a valid objection to the present declaration, as it is not stated therein that the obligors or makers of the bond sued on reside in different counties, so as to bring the case within the provisions of the statute, passed 10th January, 1816, and in force here when this action was commenced, Ark. Dig. 312, which declares that “in all cases hereafter where the obligor or obligors, maker or makers, of any note, bill, bond, or other contract, reside in different counties, it shall be lawful for the plaintiff, or plaintiffs, to institute suit against all, or as many of them as he may think proper, and it shall be lawful for the Clerk of the court, in which such suit shall be instituted to make out a separate summons, or capias, as the case may be, against the person or persons residing in a different county directed to the Sheriff of the county, or counties, where such person or persons reside, and endorse on such writ, that it is a counterpart of the writ issued, where such suit is commenced.” These statutory provisions innovate upon, and change the common law, so far as to authorize the suit to be brought and maintained against any number of the obligors or makers of the contract, but upon every principle of law, the plaintiff to avail himself of this special privilege, and present his case within the operation of. this statute, so as to exclude it from the operation of the general rule, must show by some proper averment on the face of his declaration, that the obligors, or makers of the contract, reside in different counties. The objection, however, as to. the non-joinder of-parlies who ought to be joined in the action was not available on demurrer, even at common law, unless it appeared by the declaration or other pleading of the plaintiff, that the parties not sued, not only executed the contract, but also that they are still alive, and if this does not appear, the objection can only be taken advantage of by plea in abatement, and to this effect are .the cases of Rice vs. Shute, 5 Burr Rep., 2611; Cabell vs. Vaughn, Rep., 291, n. 4; also Gilman vs. Rives, 10 Peter’s Rep. 298.
In the case before us the declaration does not positively show that the co-obligor Williams was alive when the action was commenced, but it is simply stated that he executed the bond, and is not sued. This language strongly implies that he was living, but whatever the legal presumption from it may be, it is deemed unnecessary to decide, as the demurrer ought to have beep sustained on the ground before stated, and if the case is remanded, the plaintiff will be at liberty to amend his declaration, and may obviate this objection, unless it may be taken advantage of by plea in abatementat that stage of the pleading in the Circuit Court.
The matter of the fifth, sixth and seventh objections, specially stated in the demurrer, are not defects of which the defendants can avail themselves by general demurrer at common law, because if the debt demanded had been paid to Governor Pope, or either of his successors in office, by the obligor Williams, such payment, if legally made, would enure to the benefit of all his co-obligors, and the defendants could avail themselvess by an appropriate plea of payment, and the breach assigned expressly negatives the payment by the defendants, or either of them, of the sum demanded, or any part thereof, to Gov. Pope, or either of his successors in office, or to the Auditor, since the right of action accrued to him by virtue of the statute before cited; and no special demand of payment was necessary to be averred as the sum demanded was legally due and payable according to the terms of the contract described, at the date of the bond, and it must in our opinion, be admitted that if there is no necessity to mention the co-obligors not sued in the declaration at all, a fortiori any allegation that they have not paid the debt must be unnecessary, and this appears clearly from the cases above cited to be the settled rule of the common law, for in some of them it is expressly stated that the deed or obligation set out on oyer, purported to have been sealed by persons not sued, and yet the objection was not deemed good on demurrer, because it did not appear that the person not sued had sealed the obligation and was still living; which, in every case must appear to entitle the defendant to avail himself of this objection, and, therefore, a plea in abatement, setting forth the facts-, was necessary when they did not appear on the faGe of the plaintiffs pleading, and which, in our opinion, is yet the rule of law, applicable to such cases, and as there is no averment in the declaration that Lowery, who is alleged to be dead, ever executed the bond, the rule in every respect applies to the case before us, and overrules the three last mentioned grounds of demurrer.
Having now disposed of the demurrer, and the several matters contained therein, specially stated as defects in the declaration, it is deemed unnecessary to notice particularly any other of the numerous matters which have been assigned as error in the proceedings and judgment of the Circuit Court, as the same questions may not arise upon another trial of the cause. It is, however, considered proper to state that the law in force, when the bond mentioned in the declaration bears date, requiring the Sheriff to give such bond to the Governor and his successors in office, does not vest in him or his successors in office, any beneficial interest whatever in the contract. He takes simply the legal interest, in his corporate character, as the legal and legitimate representative of the sovereignty of the people, and holds it as a naked trust for the use and benefit of any person, corporation, or body politic and corporate, who, or which may be damnified by any violation or breach of any stipulation contained in the condition thereof, and every person, corporation, or body politic and corporate, so damnified, is authorized by law to sue upon the bond, in the name of the Governor, for his or their use, from time to time, as often as may be necessary, until the whole penalty of the bond shall be satisfied or recovered. From which it appears that the Governor, and his successors in office, are vested by law simply with the legal interestin the obligation, without any authority to receive or release the debt, or in any manner change or discharge the obligation, otherwise than for the use of those who may sue and recover thereon for some breach of the condition thereof. And it will be observed also that the law has not conferred upon the Auditor any legal right to receive payment or satisfaction of any demand which the State or people have a right to claim; the power to sue and recover is alone vested in him by the provisions of the statute above cited, and therefore he cannot discharge the legal liability of any person to the State, or people of the State, except in the manner prescribed by law, after payment or satisfaction of the demand has been made to such officer as is authorized to receive it for and on account of the State, and, therefore, to enable him to maintain any action in his name, as Auditor of Public Accounts for the State, he is bound to exhibit such facts as “ create a legal demand in favor of the State” against the defendants, and if the action be founded, as it is in this case, upon the official bond of a Sheriff, it must be shown that the demand claimed for the use of the State, has accrued by reason of gome act done, or omitted, by the Sheriff in the discharge of his official duties, in violation of some stipulation cpntained in the bond, with sufficient averments that payment or satisfaction of such demand has not been made to such person as is authorized by law to receive it, for, or on behalf of the State, and here it may not be improper to remark that in this, as well as in some other respects, the suggestion of breaches in the present case, as contained in the transcript of the record before us, is materially defective; and as the case must be remanded to the Circuit Court for further proceedings to be there had, we feel it our duty to state that, in our opinion, this suit may well be prosecuted to a final judgment on the merits of the controversy, in the name of the Auditor of Public Accounts for the State of Arkansas. It having been commenced before the statute authorizing him to sue was repealed, his right to prosecute it to a final adjudication on the merits is preserved by the provisions contained in the 29th and 31st sections of chapter 129 of the Revised Statutes of Arkansas, pages 698 and 699. The former provides that “ the repeal of any statutory provision by this act, shall not effect any act done, or right accrued, or established, or any proceedings, suit, or prosecution had or commenced in any civil case, previous to the time when such appeal shall take effect; but every such act, right, and proceeding, shall remain as valid and effectual as if the provisions so repealed had remained in force;” and the latter declares that “ no action, plea, prosecution, or proceeding, civil or criminal, pending at the time any statutory provisions shall be repealed, shall be affected by such repeal; but the same shall proceed, in all respects, as if such statutory provision had not been repealed, except that all proceedings had, after the taking effect of the Revised Statutes, shall be conducted according to the provisions of such statutes, and shall be, in all respects, subject to the provisions thereof, so far as they are applicable.” These provisions were' designed to protect the parties to all proceedings pending for adjudication in any of the courts of this State at the period of the taking effect of the Revised Statutes, in all their rights as they then existed; so that the adjudication upon any proceeding or pleading had prior to that time, in any case then pending, shall be governed and determined by the law in force when the pioceeding took place, without reference to any subsequent change made therein in regard to the same, or the like proceeding, by any of the Revised Statutes, requiring however, at the same time, all proceedings subsequent to the taking effect of the statutes, even in cases previously commenced and then pending, to conform to the provisions thereby made, so far as they are applicable; but they cannot, consistently with the spirit and intention of the law, be considered as applicable when their application would avoid or invalidate any proceeding previously had in a matter then pending, which was before valid and authorized by the law in force, applicable to it when it accrued, and the same rules apply e converse, as that no proceeding not previously authorized, or legally invalid, when it accrued, is aided thereby; and, therefore, as this suit was, in this respect, properly commenced, it can be legally prosecuted to a final adjudication in the name of the Auditor, notwithstanding the statutory provision authorizing it, is so far repealed, as to divest the Auditor of his right to commence suit in his own name and official character for any demand claimed by the State since the Revised Statutes went into operation.
Wherefore, it is the opinion of this court, that there is error in the judgment of the Circuit Court, of the county of Pulaski, given in this case, for which the same ought to be, and is hereby, reversed, annulled, and set aside, with costs, and'the cause remanded to the said Circuit Court, with instructions to said court to sustain the demurrer to the declaration, and grant the plaintiff leave to amend, if he shall apply therefor, and for further proceedings therein to be had, according to law, and not inconsistent with this opinion.