dissenting. I agree with the circuit judge that the declaration shows no cause of action. The law *50cannot be changed by the'mode of entitling the cause, or by the fashioning of the declaration. The defendant Brock was elected sheriff and gave a bond, with the other defendants as sureties, for the discharge of his duties in a proper manner. It was framed in accordance with the statute (Comp. L. §§ 550-1) in all respects, except that in place of being made to “ the people of this State,” it was drawn and executed as running to “ the county of Bay.” It was approved in the same manner by the board of supervisors as required where the bond, conformably to the statute, is made in terms to “ the people of this State.” Laws 1873, Act 27, p. 26, as amended in 1877 by Act 112 Pub. Acts 1877 p. 86. The action is brought on this instrument in the name of Bay county. In entitling the cause the names of Houghtaling and Eomeyn are introduced as persons for whose use and benefit the suit is prosecuted, and the cause of action set up is confined to injuries to them by the defendant Brock in his character of sheriff, in neglecting to levy and in falsely returning as unsatisfied an execution in their favor. No breach of) duty or default towards the county is suggested The county’s title to sue is based exclusively on the alleged grievances of Komeyn and Houghtaling.
The general principle is indisputable that no one but the party having the strict legal title to the cause of action can be plaintiff, and that suing in the name of one and alleging the cause of action as in another is a fatal contradiction (1 Chitty’s Pl. 2, 3; Forrest v. O'Donnell 42 Mich. 556); and this principle is always applicable unless the case is taken out of it by some special regulations, and there are no such provisions for a suit in the name of a county, based on a bond for the official good behavior of a sheriff.
Where the people of the State are the real obligees, a suit in their name may be maintained on the bond for the use and benefit of any one injured by the default or misconduct of the sheriff in his office, and in that case “ such party shall be deemed the plaintiff in such action.” Comp. L. ch. 209 § 1 et seq.; Jackson v. The People 6 Mich. 154. The jpower in that instance is given by statute, and would not *51exist otherwise. The enactment would not have been required if the same course might have been pursued without it. The Legislature saw fit to connect the remedial exceptions with a proceeding in the name of the people on the sheriff’s official bond, and not with one in the name of a county, and it is not competent for the court to extend the regulation to an action in the name of a county. Davis v. Kruger 4 E. D. Smith 350; Jackson v. Simonton 4 Crunch C. C. 255; Town of La Grange v. Chapman 11 Mich. 499; Stevens v. Hay 6 Cush. 229; Marshall v. The State 8 Blackf. 162.
In case the beneficiary sues in the name of the obligee for a cause of action with which, as the same is set forth, the obligee has no connection, the aid of the statute is indispensable ; and where, as here, it does not apply, the nominal plaintiff must be considered as the real plaintiff in judging of his right to sue on the cause of action set up, and the suggestion that the suit is for the benefit of others cannot avoid the want of legal title in him apparent on the face of the declaration. Farwell v. Dewey 12 Mich. 436; Clay Fire & M. Ins. Co. v. Huron Salt etc. Co. 31 Mich. 346; Kelly v. The State 25 Ohio St. 567; The State for the use of the Justices of the Levy Court of Baltimore County v. Dorsey et al. 3 Gill & J. 75; Inhabitants of Northampton v. Elwell 4 Gray 81.
The books contain instances where actions have been sustained, notwithstanding a variation between the denomination of' the obligee in the statute and in the'bond. But this has been on the ground of there being no difference in effect, the essence of the ruling being that either name denoted the same governmental agency or sovereignty: Treasurers v. Stevens 2 McCord 107; Tevis v. Randall 6 Cal. 632. So too it has been held that the same corporation might under some circumstances be made a party in legal proceedings, under either of two names, each having the requisite legal property to identify it. Lyell v. Supervisors of Lapeer County, 6 McLean 446 ; Johr v. Board of Supervisors of St. Clair County, 38 Mich. 532. These decisions are not applicable here. *52The expressions “ The county of Bay ” and “ The people of this State” do not represent the same thing. The latter denotes the political or sovereign body of the State, and the former one of its political subdivisions or municipal corporations. The county had only the common interest of natural and artificial persons in general, and no greater competency to become a.party as obligee; and it had no authority whatever to assume the position of trustee. No exception in favor of authority by the county can therefore be found in any peculiar interest of its own, or in any particular duty imposed upon it to stand as a trustee.
But it must not be implied from these considerations, which are urged to show that the bond is not suable in the name of the county, that it is decided to be invalid. That point is not involved. The transaction stands on grounds peculiar to itself. The requirement of the proper obligation is an expedient of government to afford protection to suitors, and is of a public nature. The obligation prescribed does not spring from the mere business concerns of individuals, or from any of those arrangements of personal or private' interest which are the sources of other classes of obligations. It is something which forms a part of the machinery of administration. It is expressly required of the sheriff, and its character and scope are previously ascertained by law. No room is left for any negotiation or speculation about the terms. They are given by the statute, and as stated heretofore, the instrument is directed to be made to the people of this State, and except in Wayne county, the business of approval is devolved on the board of supervisors. In performing this function it is incumbent on them to see, not only that the sureties are sufficient, but that the essential matters as to the contents agree with the statute; and in this they are called to act as agents of the public and guardians of its interests. The named obligees are contemplated as having nothing more than the legal title, the beneficiary being regarded, in case of a suit, as the plaintiff in interest and controller of the action, and the suit and judgment as his suit and judgment. •
*53Now, in regard to the instrument in question here, there seems to be but one inference, and that is that it was drawn, executed and received as the security the statute called for from the sheriff, and that the only agency for the public in taking it was the boai’d of supervisors, .and that the board, standing in that situation, instead of taking it in the name of the true and lawful principal, the people of the State, took it in point of fact in its own name, or rather in the name of its other self. And it seems to me that, without violating any principle or going counter to any sound reason, a suit in the name of the principal, the people of this State, with proper averments of their legal title and in explanation of the case, might be maintained. United States v. Boice, 2 McLean 352; Dugan v. United States 3 Wheat. 172; President and Trustees of the Town of Fort Wayne v. Jackson 7 Blackf. 36.
I perceive no obstacles that are not rather formal and technical than substantial. It would be different with a case originating in another way and not subject to the group of considerations which depend on the nature of the obligation and the statutory provisions with which it is inseparably connected. There was nothing for the judgment or discretiorf of the obligors. There were no terms to be the subject of discussion. The required security was precisely liquidated by law, and nothing .more was necessary than to fill the mould, and this the parties were bound to know. They were acting on the call of the law, and it must be intended that it was their purpose to comply with it and not evade it. The case not being one in which the parties might shape their undertaking to suit themselves, the door is closed against all claims based on the assumption that their position entitled them to exercise option. Whether they succeeded or not, their design in executing this bond was to satisfy the statute.
The main stumbling-block seems to be the seal. But' the fact that the instrument is under seal, though once a weighty circumstance, is not a matter .of much importance now. The ancient significance of private sealing has almost wholly disappeared, and so far has respect for it declined that the Leg*54islature has first permitted the use of “ any device ” “ by way of seal” (Comp. L. § 5937), and then enacted that “no bond, deed of conveyance, or other contract in writing, signed by any party, his agent or attorney, shall be deemed invalid for want of a seal or scroll affixed thereto by such party.” § 6194. "When the matter is considered independently of the deference usually felt for technical rules belonging to a state of things where many of our legal doctrines originated, although the circumstances in which they had their birth are entirely altered, the sealing seems a very insufficient reason for excluding the name of the people of the State as formal plaintiffs on the bond.
The theory suggested of regarding the county, for the purpose of the question, as the agent of the people of the State in taking the bond, and then implying a right to sue on it in the name of the people as the principals or substantial obligees, was not presented in La Grange v. Chapman, supra, and I see no other theory on which the bond can be sustained.
Under this view there may be a question upon the effect of the judgment. It may be claimed that Houghtaling and Eomeyn are concluded. That does not appear to me the necessary legal result. The present action, on the view I take, is. determined. But as the case was brought to an end by the refusal to admit any evidence, and the ruling was authorized, not because the bond was invalid and could not be sued on for the benefit of Eomeyn and Houghtaling in the name of the people, but because it could not be so sued on in the name of Bay county, the effect is not final, and the judgment cannot be regarded as a bar to a new suit in the name of the people.
In my opinion the judgment should be affirmed, with costs.