CHAPMAN, Governor, &c. vs. SPENCE et al., 22 Ala. 588

LIGON, J. That the governor of this State is a corporation sole, which can never die, but exists by constant succession of some individual to the office, is a proposition which at this day will scarcely be doubted. The Governor v. Allen & McMurdie, 8 Humph. 176; Polk v. Plummer et al., 2 Humph. 506.

But this is to be understood of the officer, and-not of the person; so that when a bond, required by law to be made payable to the governor of the State, and his successors in office, is made payable to a particular individual by the style of governor, the bond must be regarded as payable to the officer, and not to the person; and a suit brought upon it by the governor, in his name and style as such, for the use of the party injured by the breach of it, will be sufficient.

For this reason, also, a suit brought on such bond in the name of the individual who fills the office at the time the bond was made or the suit instituted, without employing his corporate style and name in connection with it, would be the suit of the person, and not of the officer, and consequently would be bad. Bagby, use &c. v. Baker, 18 Ala. 653; Bagby v. Chandler & Chandler, 8 Ala. 230.

If, then, a writ be issued in the name of the person who holds the office of governor for the time being when it is commenced, and at the same time describing him by his official or corporate name, the name- of the individual may be regarded as surplusage, and if stricken out would not invalidate the process. Bagby v. Chandler, supra. But, if the individual name is used, and the constitutional and legal style of the officer be so imperfectly set out that it cannot be looked upon as the suit of the officer, the proceedings must be regarded as that of the individual.

For when it is necessary to retain the name of the individual, in order to validate the writ, it will be treated as his suit. Bagby, use &c. v. Baker, supra. By our constitution, the corporate style and designation of the governor is, “ The Governor of the State of Alabama.” Constitution of Ala., Art. 4, Sec. 1. By him, in this style, all suits must be brought which he is authorized to institute, whether for the benefit of the State, or for individuals; and to him, by this style, all bonds, recognizances, &c., must be made payable, in order to render them good as statutory obligations.

A material departure from it in the writ, would render that process bad, and subject it to be quashed on the proper plea; and an imperfect description of it in a bond or recognizance, would prevent tbe penalty from being enforced under a statutory remedy, if that remedy differed from tbe one given by tbe common law on instruments of tbe same class. In order to ascertain whether tbe writ in tbis case issued at tbe suit of the governor of tbe State of Alabama in bis official capacity, or whether it is to be regarded as the suit of Beuben Chapman as an individual, it must be tested by tbe rules above laid down.

Can tbe name of Beuben Chapman be stricken from tbis writ, without invalidating it as a process of tbe court. To render a process good, it is necessary, among other things, tbat it be certain as to the person suing it out. If it be so uncertain in tbis respect, tbat it cannot be ascertained from tbe writ itself, who is tbe plaintiff in the action, it is invalid as a process, and tbe defendant is not bound to answer to it. Strike, then, the name of Reuben Chapman from tbis writ, and it will run in tbe name of “ Governor, &e.,” a designation entirely too uncertain for us to say who is meant by it.

But strike this uncertain description from it, and it is a good writ, in which Beuben Chapman is the plaintiff, for the use of the Branch of tbe Bank of the State of Alabama at Decatur. Tbe writ being in the name of Reuben Chapman, in his individual capacity, will not support a declaration in the name of “ tbe Governor of tbe State of Alabama.” Tbe departure is total, and there was no necessity to plead it in abatement. A motion to strike the declaration from the files was proper, and there was no error in allowing it. Curry v. Paine, 3 Ala. 154; Reid & Co. v. McLeod, 20 Ala. 576.

The fact that the usee is the same both in tbe writ and declaration, cannot prevent this result; for his right of recovery necessarily depends upon that of the principal plaintiff, as, without him, he has no standing in court. He is not allowed to sue in bis own name; and although he may use tbat of tbe payee or obligee in the bond, against the latter’s consent, where tbe whole interest in tbe demand belongs to the usee, still, as there is no assignment, the payee is an indispensable party.

The usee, therefore, will not be allowed to set up his right under one payee or obligee in bis writ, and under another, and a different one, in tbe declaration. The judgment below must be affirmed, and tbe non-suit be allowed to stand.