Phillips v. Governor

Lacy, Judge, delivered the opinion of the court: It is contended on behalf of the plaintiffs in error that the court below erred in overruling the demurrer to the declaration, and that all the subsequent proceedings are consequently irregular and illegal. Before we proceed to determine this point, it may he well to notice., and dispose of another objection, urged by the plaintiff in error. It is said the action cannot he maintained because'the suit is brought in the name of James S. Conway, Governor of the State of Arkansas, as the successor of John Pope, late Governor of the Territory as aforesaid, when in truth and fact the plaintiff was the successor of William S. Fulton, Governor of the Territory as aforesaid; that the, &c.s. the bond, upon which the suit is instituted, was executed in 1834, and the allegation in the declaration is, that it was made to the plaintiff in the action, and therefore this court is bound judicially to take notice when the State Government was formed, and when the present acting Governor entered upon his official duties; and that this being the case, it follows that the present plaintiff was the' successor of Governor Fulton, and not of Governor Pope. We are unable to perceive the force or reasons of this objection. The statute authorizing the execution of administrator’s bonds makes them payable “ to the Governor and his successors in office.” This is the express language of the act. The object and design of the statute was to vest in the Governor and his successors the- right of action whenever a breach occurred on the condition of the bond. It does not confine or restrict this right to the Governor and his immediate successor in office, but it gives it to him and his successors, thereby clearly authorizing the suit to be brought in the name of any person who may be legally chosen to fill the office. The office itself, in legal contemplation, is always in esse, and it matters not to whom the bond was executed ; if there is a breach upon it, the right of action accrues to him who is the acting Executive at the time of the institution of the suit, and of course such person is the legal successor of him to whom the bond was executed. This being the case, the suit is properly brought in the name of the present plaintiff as the successor of John Pope, late Governor of the Terrtory of Arkansas. This suit is prosecuted in the name of the Governor for the use and benefit of the heirs and legal representatives of David Trimble, deceased, against the administrator of said estate, and the securities upon their official bond, under the provisions of an act of the General Assembly of the Territory of Arkansas, passed in 1831, which declares that “ in all actions upon any bond or penal sum for non-performance of covenants or agreements in any indenture,.deed, or writing contained, the plaintiff or plaintiffs may assign as many breaches as he or they shall think fit.” This act is substantially the same in most of its provisions, as the act of 8th and 9th Wi. Ill, and the decisions upon that statute may be regarded as strictly applicable to the one now under consideration. Under the statute of William it has been held that the plaintiff is compelled to assign or suggest breaches, and if he fails to do so, he cannot recover. Unless the condition and the breach appear upon the record the proceedings will be erroneous. 5 T. R. 633, 538; 2 Wilson, 337. And such we apprehend is the legal and legitimate operation of the act of 1831, and so it has been determined in the case of Lyons vs. Evans, and others. 1 Ark. 367. The bond upon which the suit is instituted is made payable to the Governor and his successors in office, and the jury upon the trial are ,required to assess damages for each of the breaches that the plaintiff alleges, and that are' proved to be broken. The Governor holds the legal interest in the bond in his official character, as a naked trustee for the benefit of those for whom the suit is instituted, and the injuries resulting from the non performance of the condition of the bond, do not appear until some special breach or breaches are suggested and assigned, and the damages specially shown or proven. Therefore, every breach must state the facts specially upon which the plaintiff’s right of action depends, and must allege them with as much certainty and precision as-are required in the count or counts of a declaration. The breaches appear in every point of view to answer the same purposes as counts in a declaration where the form of proceeding is different, and therefore if the plaintiff fails to suggest or assign proper breaches upon the record, no cause of action accrues. This is - the undoubted rule upon the subject, for the breaches assigned are to be considered as the gravamen or real foundation of the recovery; consequently the persons for whose benefit the suit is brought are the real plaintiffs, and of course they must show a good cause of action, or upon general demurrer the declaration will be held fatal. The People vs. Russell and Wood, 4 Wend. 570; People vs. Brush, 6 Wend. 554. A breach may be considered well assigned if it be in the words of the; contract, either negatively or affirmatively, or in words co-extensive-with its legal import or effect. The object of the assignment ofi’abreach, is to apprise the opposite party of what he is called upon to answer. By applying the rules above stated to the declaration now under consideration, we will be enabled to perceive whether or not the breaches are properly assigned. • In the present instance the declaration seems designed to cover the whole condition of fhe bond, and it contains but a single breach, which amounts'to nothing more than this, that the said administrator had done nothing which by law he was bound to do. Such a breach is fatally defective, for it contains neither substance nor form, and it expressly contradicts all the known rules and precedents of pleading. 1 Chit. Pl. 424, 425; 3 Chit. Pl. 1179, 1180; Story Pl. 325. There is certainly but one breach contained in the declaration, for it possesses no separate or component parts assigning different breaches. It simply sets out the condition of the bond, and then negatives them in general terms, without alleging any specific facts upon which the defendants’ liability depends. This is a suit for the use of: heirs, and of course they are only entitled to maintain the action in the event that they have been damnified. In order to do this, they are bound to show by positive and specific averments their interest in the estate, and how and in what manner they have been deprived of that interest by the devastavit of the administrator. The declaration cannot be regarded as containing any one substantial breach. It seems to rely solely upon the fact that the administrator had not performed his duty according to law, and it lays the breach to pay the debts of the deceased in the same clause with that to pay the distributive shares of the heirs. In all the breaches it attempts to set forth there is no specific cause of action alleged with reasonable certainly or precision, and of course it is fatally defective upon demurrer. Again the finding of the jury is not in conformity with the statute regulating the practice in such case, and of course the subsequent proceedings are erroneous. The act in relation to judgments obtained upon demurrer, or by confession, or default, upon penal bonds, requires that “ the court shall make an order therein that the truth of the breaches assigned be inquired into, and the damages sustained thereby assessed. And the judgment in such action shall be entered for the penalty of the bond, together with costs of suit,” and that the plaintififhave execution for the damages so assessed. Rev. Stat. 669, sec. 7 and 8. Neither of these requisites is contained in the order or judgment of the court. The record merely states that “ the jury was sworn well and truly to try, and damages assess, and a true verdict render according to evidence,” and they assessed the damages sustained by reason of the breaches of covenant for a given sum. There was no verdict as to the truth of the breaches, nor judgment for the penalty of the bond as the statute requires. The judgment of the Circuit Court must therefore be reversed.-