Thorn et al. v. Yell as Governor.
A bond to Jas. S. Conway, Governor of Arkansas, and his successors in office, executed under the Act of 1838, authorizing the Governor to sell the Seminary lands, is payable to him in his official, and not his individual, character.
Writ of Error to the Pulaski Circuit Court.
Debt, determined in the Pulaski Circuit Court, May term, 1843, before Clendenin, Judge.
Declaration:
*122“Archibald Yell, as Governor of the State of Arkansas, and successor in office of James S. Conway, late Governor of said State, for tire use and benefit of said State, by attorney, complains of Thomas Thorn, James Lawson, jr., and Richard C. Byrd, of a plea that they render unto him, as such Governor, the sum of eight hundred dollars, which to him they owe and from him unjustly detain.
For that the said defendants, heretofore, to wit: on the 18th day of February, 1840, at Little Rock, to wit: at the county aforesaid, made their certain joint and several writing obligatory, bearing date the day and year aforesaid, and now here to the court shown, signed by their respective style of Thomas Thom, Jas. Lawson, jr., R. C. Byrd, and sealed with their seals, and then and there delivered the same to the said James S. Conway, the Governor of the State of Arkansas, whereby the said Thomas Thorn, as principal, and James Lawson, jr. and Richard C. Byrd, as securities, jointly and severally promised to pay to James S. Conway, Governor of the Slate of Arkansas, and his successors in office, or order, two years after the date thereof, four hundred dollars (parcel of the sum of money above demanded) with interest thereon at the rate of ten per cent, per annum from date until paid, negotiable and payable at the principal branch of the Bank of the State of Arkansas, at Little Rock, without defalcation, for value received: the interest payable annually at said Bank: (and said plaintiff avers that he is the successor of James S. Conway, as Governor of the State of Arkansas), rvhich said period hath long since elapsed, whereby, and by force of the Statute in such case made and provided, the said defendant became liable to pay to the said plaintiff as such Governor and successor in office, the said sum of money in said obligation specified, together with interest thereon, according to the tenor and effect of said writing obligatory.”
Then followed a similar count on a similar obligation, payable one year after date, concluding thus:
“Yet, although often requested so to do, the said defendants did not, nor did either of them, pay to the said James S. Conway, whilst Governor of the State of Arkansas, nor have they, or either of them, paid to the plaintiff as such Governor and successor in office as aforesaid nor to any person authorized by law to receive the same, the *123sums of money in said two counts mentioned, nor either of said sums, nor any part thereof, nor the interest upon either, nor any part thereof, to the plaintiff’s damage as such Governor and successor in office as aforesaid, of three hundred dollars, and he sues for the same as such.” ' ( “Hempstead & Johnson,
Defendants demurred to the declaration, assigning the following causes therefor: “1st. Neither count of. said declaration shows or sets forth any obligation of the defendants tb said James S. Conway in his official capacity: 2d. Neither count shows that said obligation therein mentioned was such an one as said James S. Conway had power to take in his official character: 3d. Said declaration shows no right existing in the plaintiff to' sue on either of the obligations therein mentioned.”
The court overruled the demurrer, and the defendants declining to plead over, rendered final judgment for plaintiff. Defendants brought error.
Pike & Baldwin, Ringo & Trapnall, for plaintiffs.
■ Watkins, Attorney General, contra.
Johnson, C. J.
The question raised by the demurrer, is whether the declaration discloses such a cause of action as would warrant a recovery by the defendant in error. The ground assumed is, that the suit is instituted in the official capacity of the defendant, whereas, the obligation described purports to have been executed to him in his individual character. By the first section of the act of 1838, the Governor is appointed the agent of the State, to sell and dispose ¡of tire seventy-two sections, or that portion thereof remaining unsold, granted to the Territory of Arkansas, by an act of the Congress of the United States, approved the second day of March, A. D„ eighteen hundred and twenty-seven, for the purpose of erecting and establishing a Seminary of Learning in the said Territory. The 4th section of the same act also provides that the obligations for the purchase money, shall be made payable to the Governor and his success-*124qrs in office, or order, payable and negotiable at the principal Bank of the State, in the city of Little Rock, for the use and benefit of the University therein provided for, in all cases bearing interest at the rate of ten per cent, per annum from date until paid, the interest to be paid annually. Had the instrument, upon which this suit is founded, been executed under the authority of a general law, the objection perhaps would have been well taken; but when it is remarked that the act under consideration is special and limited in its operation, and in the nature of a power of attorney, conferring upon the Governor as an officer, certain definite powers, it will appear manifestly, that the description contained in the writing, is not merely personal, but that it is strictly and technically official. The obligation is in the very words of the act, and it is perfectly apparent from the whole tenor of that law, that it was the officer, and not the individual, that was appointed the agent of the State. The legislature, for causes satisfactory to themselves, did not choose to have the bonds executed directly to the State, but required them to be given to the Governor as the head and immediate representative of the State government. We think it clear, therefore, that the writing sued upon, though not made to the Governor as such, is to all intents and purposes, by the mere force of the language used, in view of the authority under which it was executed, an obligation made to him as an officer, well known to our Constitution and laws. Under this construction of the act, we think it clear that the demurrer ought to have been overruled. Judgment affirmed.