Mr. Justice Terry concurred.

Admitting the right of Carothers to intervene in this case, his petition must be treated as a declaration or complaint under the statute, and as such is wholly insufficient. The facts set forth therein would be insufficient to constitute a cause of action either in law or equity; and the report of the referee, admitting all that it contains, shows conclusively upon its face, that the intervener has no legal claim against the State, and was not entitled to judgment.

We know of no law which would warrant the Governor or Attorney General in making such a contract; in fact, they possessed no such power. If entered into in good faith, it might be the subject for relief at the hands of the Legislature, but is certainly not a cause of legal action.

In absence of any statute to that effect, the State cannot be sued, and the judgment against her is erroneous. Upon the merits of the judgment, we forbear the expression of any opinion.

Judgment reversed.