This is anaction of assumpsit, for meat, drink, and lodging, furnished by the plaintiff to one Francis Lona and his wife, at the request of the defendant. The only question is, whether the defendant contracted as a private *125individual, or in his official character, as-one of the overseers of the poor of the town of Schagticoke ?
There is no longer any question as to the rule of law, that where a public agent acts ostensibly in the line of his duty, his contracts are public, and not personal. It is also clear, that a known public agent, acting within the scope of his authority, and contracting for the use of the public, may, by special agreement, superadd his personal responsibility, so as to render himself individually liable : but (as was correctly remarked by Ch. J. Marshall, in Hodgson v. Dexter,) “ under these circumstances, the intent of the officer to bind himself personally, must be very apparent, indeed, to induce such a construction of the contract.”
As in most other cases, the difficulty here, is in the application of the rule. It is a question of intention in the contracting parties, to be collected from all the facts and circumstances of the case.
(The Judge here stated the facts of the case.)
From this evidence, I think the fair inference is, that the parties mutually understood that the defendant contracted as overseer of the poor. In saying that “ he was acting in the towids business,’’ that “ the town is rich,” and “ you will be sure of your money,” the idea of personal liability seems to be repelled ; and the subsequent demand on the defendant’s successor in office, confirms the supposition, that it was regarded as the contract of a public agent.
In the case of Gill v. Brown, (12 Johns. Rep 385.) there was not only an express promise to pay, on the part of Brown, (who was quarter master,) but the decisive feature in that case was, that it was a contract not within the regular scope of his authority.
In Walker v. Swartwout, (12 Johns. Rep. 444.) the promise by Swartwout, was as express and positive, as could be framed : “ my word is sufficient: go to your work, and I piillpay you when it is doneJ’’ Yet, as it appeared that the defendant spoke with reference to the public service under his charge, as quarter master general, this Court, (Thompson, Ch. J. dissenting,) decided that he was not personally bound : and I refer, with great satisfaction, to the concise and discriminating review of the adjudged cases, by Mr. Justice Spencer, who delivered the opinion of the Court.
*126In Brown v. Austin, (1 Mass. Rep. 208.) the same rubs was sanctioned: viz. that an-officer treating as an agent for the public, is not personally liable.
In King v. Butler, (15 Johns. Rep. 281.) the defendant, being overseer of the. poor, “requested and directed the plaintiff to provide all things necessary’’ for the.recovery of a sick stranger then at the plaintiff?s house, and said (i he would see>the plaintijf paidM ¡The plaintiff furnished The necessaries accordingly; and then presented his account to the board, of supervisors, as a county charge, •for supporting a transient sick pauper, which ¡was rejected- by the supervisors, because the overseer had never obtained a justice^ order for the , relief. The plaintiff then sued the overseer; and it was held, that he was •personally liable. One ground of that decision was, that the officer had neglected his .duty in not obtaining ■ the justice’s order, which was an indispensable voucher at tb.e board of supervisors. But it - is also worthy of remark, •that the, form-of contracting, lt I will see you paid,” was in !the style-of a special guaranty; and distinguishable in some degree from the present case.
I cannot admit, however,, that an express promise to pay by the contractor, forms the criterion of personal responsibility. For-the question-recurs, -in what character does ,he contract ? As a.public agent, or as a private person ?
Where the res gesta and the attending circumstances, ■show the contract to be on public account, .it is not .necessary, in order to screen him from personal liability, that the contractor should expressly say, I contract as quarter mas•ter, or I promise to pay as overseer of the poor.
The case of Macbeath v. Haldiman, (1 Term Rep. 172.) and the case of Hodgson v. Dexter, (1 Cranch, 345.) are polar stars, which, in my judgment, guide us. ,to a decision in favour of the defendant in this case.
■Tan Ness, J. and Yates,- J. concurred. Spencer, Ch. J.dissenting. If ;the defendant rendered .himself personally liable to the plaintiff on his contract, to pay for fthe maintenance.of the paupers,uthen the twcnebs *127jections, thatthe suit should have been against him as overseer of the poor, &c. and that the venue should have been laid in Washington county, fall to the ground.
The defendant’s official character in the supposed case, is not the principal basis of the action 5 it may have had ics iufluence in producing the promise, but the plaintiff did not rely upon it. It is not necessary to state it. Where the right of action against an officer, is founded on the obligation of law, unconnected with any contract between the parties, then the office of the defendant must be stated, and the circumstances which gave rise to the defendant’s particular duty or liability, as in actions against sheriffs, carriers, inn keepers, &c. (1 Chitty Pl. 369.)
It is not a case within the act; (1 R. L. 155.) the statute requires that where actions on the case, trespass, battery, or false imprisonment, are brought against any sheriff &c. and including overseers of the poor, for, or concerning any matter or thing by them done by virtue of their office, the action is to be laid within' the county where the trespass or fact is done; and if on the trial, the plaintiff shall not prove that the cause of his action arose within the county wherein such action is laid, the j.ufy shall find the defendant not guilty.
This statute, by “ actions on the case,’’ evidently meant actions for mis-feasance or non-feasance, and sounding in tort, for the verdict is to be not guilty, and the promise of the defendant, if personally binding, is not to be regarded as an official act.
The judge who tried the cause, expressed a pretty decided opinion, that the defendant contracted as overseer ; and ought to have been sued in his official, and not in his individual character.
In the case of King v. Butler (15 Johns. Rep. 281.) we held that the overseer was liable to a suit, where he had requested the plaintiff to maintain the pauper, and made an express and absolute promise to pay him for the same. This case is governed by the principles applicable to the question, whether credit was given to the individual in his private-capacity, or as an agent of the town. In Gill v. Brown, (12 Johns. Rep. 388.) Chief Justice Thompson observed. *128that it is a question of intention, and if the agreement shows (jie contract was made evidently on public account, without a view to the personal responsibility of the agent, he "’¡11 not be liable. But where, as in the case of Walker v. Swartwout, (12 Johns. Rep 446.) the agent makes an express promise, in his own name, and not in the name or on behalf of his principal, the agent ought to be held personally responsible. So, also, in the case of Brown v. Austin, (1 Mass. Rep. 208.) it was held; that an agent, by an express promise to pay, rendered himself personally responsible.
The proof in this case is very positive, that the defendant’s engagement was precise and express, to pay the plaintiff three dollars per week, for keeping the paupers; and there can be no reasonable doubt that the plaintiff was induced to take,and provide for the paupers, relying on the defendant’s personal responsibility.
Woodworth, J. was of the same opinion.Judgment for the defendant.