JUNE TERM, 1849.

#### JEREMIAH BROWN’S ADM’RS vs. JAMES K. HATTON.

The Clerk of a District Court of the United States furnished certain transcripts of record to a collector of the customs, who applied for them officially, and, as he stated, by the direction of one of the auditors of the United States’ Treasury. Held, that the Clerk could not hold the collector- personally responsible for his fees, but must look to the United States’ Government Tor what was due to him.

The construction of a written instrument belongs to the Court and not to th® jury.

The cases of *Hitev. Goodman,*1 Dev. & Bat-.Eq. 365, and *Dameron*v. *Irwin,*S Ired. 431, cited and approved.

Appeal from the Superior Court of Law of Craven County, at Spring Term 184S, his Honor Judge Battdk presiding.

*320The plaintiff's intestate, Jeremiah Brown, was Clerk of the United States District Court, for the District of Pamlico, and the defendant, Collector of the *customs at*Washington. On the 4th of November, 1845, the defendant addressed to the intestate a letter, of which the" following is a copy: “Sir. I have to request that you will furnish *this office,*as early as you can find it practicable and convenient, a certified *list*of all custom house bonds from Washington, N. C., on which judgments in favor of the United States are had in the United States District Court for the District of Pamlico at Newbern. Also, all such as may have been in suit, if any such there be, with the date, on which they fell due, the names of the makers and sureties, the amount, for which said bonds were originally made, the amount of each payment and date thereof, and the amount still due on principal,” &c. This letter is signed, “James K. Hatton, Collector,” and addressed, “J. Brown, Esq., Clerk of the U. S. District Court, Newbern, N. Carolina.” On the 11th of November, 1845, the defendant again wrote to the intestate as follows: “Sir. On the 4th ultimo, I requested you to furnish to *this office,*a certified *list*of ail bonds or judgments belonging to this office, stating at the same time, that the *list-furnished by you*to T. H. Blount, Esq., late collector, was, according to his statement, incomplete, inasmuch as it did not contain all bonds and judgments in *your office,*belonging to this,” &c. This letter then states, “my object was to get a correct *list,*that I might comply with a request made to me, from the first Auditor of the United States Treasury, *for the same.*Your failing to comply with that simple request, has greatly disappointed me, and may subject me to some considerable loss.” It then makes the request for the *list*in the same terms as before. The third letter, written on the 20th of November; 1845, was addressed by the defendant to the intestate, repeating the request for the *list,*as stated in the proceed*321ing ones. These two last are addressed as the first and signed as that was. These letters were produced in evidence by the plaintiff, who further proved, that the intestate, in consequence of the request contained in them, had made out and sent to the defendant copies of the records required. The plaintiff 's declaration, which was in assumpsit, contained two counts, the first, upon an account for the copies of the records sent, &c.; the second, for work and labor done.

The defendant insisted, that the contract was made with him, as an officer and agent of the General Government, and he was not personally answerable.

The presiding Judge was of opinion, that from the testimony, produced by the plaintiff, it áppeared, the credit, given by the plaintiff, was to the General Government, and that there was nothing to show that the defendant intended to become personally responsible.

In consequence of this opinion, the plaintiff submitted to a non-suit and appealed.

*James W. Bryan,*for the plaintiff’, submitted the following argument:

There is error in the ruling below. The Act of Congress of 1799, Ch. 128, See. 21, Laws of the United States by Story, which prescribes the duties of collectors of customs, requires them to receive all monies paid for duties, and *to take lands for securing the payment thereof, and to keep fair and true accounts, and records of all their transactions, as officers of the customs,*in such manner and form, as may from time to time be directed by the proper department, and shall, at all times, submit their books, papers and accounts, to the inspection of such persons as may be appointed for that purpose, and shall render an account once in every three months for settlement, and on failure so to do, in eaeh and every case, the delinquent officer shall forfeit, and pay for the use of the United *322States, one thousand dollars, to be recovered with costs of suit. The collector is also required to take an oath, and enter into bonds for the faithful performance of the duties of his office. The defendant had no authority, either express or implied, from the General Government, to employ the plaintiff to furnish him with a certified list of all the bonds and judgments upon the same, belonging to the defendant’s office, inasmuch as it was made the duty of the defendant by law, to have and keep a record of the same, in his own office ; and it is manifest both from the Act of Congress, and the letters of the defendant to the plaintiff requesting this service, that the requisition made upon the defendant by the first Auditor of the Treasury of the United States, was personal to the defendant, and was to be complied with by him from the evidence which his own books ought, and were required by law, to furnish, and that his object in securing the services of the plaintiff was, to aid *him personally,*so that, to use his own language, he might “make a correct list,” and thereby be better enabled personally to comply with the requisition of the Auditor ; he well knowing, that a failure on his part to keep a true record of the same, or to comply with the requisition of the Auditor, would subject him, as he states, to “a considerable loss,” of one thousand dollars, as specified in the Act of Congress, for such delinquency. The services, therefore, rendered by the intestate, were personal to the defendant, and the credit given by him, was to the defendant, and not to the General Government.

The description of office — “collector”—annexed to the name of the defendant, will be treated as a mere designation of the person, and not as a qualification of his personal responsibility. *Thomas*v. *Bishop, 2*Strange R. 955. *S. C. Cas. Temp.,*Hard. 1 ; and it is by no means true, that the acts of agents derive their validity from professing, on the face of them, to have been done in the exer*323cise of their agency. In the more solemn exercise of derivative powers, as applied to the execution of instruments, known to the common law, rules of form have been prescribed. But in the diversified exercise of the duties of a general agent, the liability of the principal depends upon the facts, first, that the act was done in the exercise, and second, within the limits of the powers delegated. These facts are necessarily enquired into by a Court and jury ; and this enquiry is not confined to written instruments alone, but to any act, with or without writing, within the scope of the power or confidence reposed in the agent. *Mechanics Bank*v. *Bank of Columbia,*5 Wheaton’s R. 337. The General Government did not wish a transcript of the record of the judgments upon the bonds from *the Clerk of the District Court of the United*Nicies, but a statement from *the defendant,*as Collector of Washington, of the bonds sued on or due from individuals within his collection district, as appeared on the books of his office. If the books of his office were deficient in this particular, it was his personal dut}' to supply the defect, as he was bound to keep a true record of them ; if he required aid to supply this defect, and obtained it from the intestate, he became personally bound to pay for it. The person who requests a copy of a record must pay the Clerk for *it*— Caldwell v. *Jackson,*7th Cranch R, 276 — and a collector, like other public officers, cannot bind the United States, by any acts beyond, or contrary to, the authority given him by law. *Johnson in Error*v. *The United States, 5*Mason’s C. C. R. 425,

In the case of *Sheffield*v. *Watson, 3*Caines’ Ilop. 72, the Court say, it is not enough that the plaintiff knew the defendant to be a public agent, and that the frigate, built by the plaintiff, was to be a public vessel; but it should appear that the defendant contracted in his official capacity, and on account of the United States, and that the plaintiff gave credit to, and *intended*to look to the Gov*324ernment alone for compensation. The reasoning of the Court in *Cullen*v, *Queensbury,*1 Brown’s Ch. R. 101, note, shews pretty strongly the injustice and unfitness of too easily listening to an objection like the present, and turning round the party, from the person with whom he contracted, as the defendant did the plaintiff, in his answer of the 31st day of March, A. D.. 1840, to the demand of the plaintiff for payment, to those he may choose to set up as principals.

It is contended that there was error in not submitting the question of fact, as to whom the credit was given in this case, as well as the *intention*of the parties, to the jury, and also as t© the legal construction of the agree* ment between the parties, as evinced by the letters of the defendant, and the inferences to be drawn therefrom. The leading case of *Hodgson*v. *Dexter,*1 Cranch R. 363, does not sustain the defendant, though mainly relied upon by him. In that case, it is stated and admitted by the counsel on both sides, to be a question of *intention;*and the Court recognize that position as correct, and they go into an examination of the circumstances to ascertain *the intention,*and observe that the whole agreement manifests, very clearly, *a contract made entirely on public account,*without a view by either party to the responsibility of Dexter ; and this will be found to be the principle through all the cases in the *English*Courts on this subject. The cases in our own State, seem to rest for authority, upon that of *Hodgson*v. *Dexter.*In *Hite*v. *Goodman,*1 Dev. & Bat. Eq. Rep. 364, the promise or agreement purported to be an order of the embodied magistracy of Gates County, acting in their official or public capacity, offering a reward of sixteen hundred dollars for the apprehension of certain runaway slaves, and a command to that County, and its fiscal officers, with no consideration or benefit moving personally to themselves. In that case there copld be no pretence that the defendants were *o***325*intended*to be personally bound, and it is obvious that they acted, ov assumed to act for the public. In *Dameron*v. *Irwin,*8 Ire. R. 421, the action was debt, upon a covenant or agreement entered into by the defendants, *as Commissioners for and on behalf of the County of Meck-lenburg,*agreeing to pay the plaintiff a specific sum to build a *Court House*for the *County of Mecklenburg.*There could be no difficulty in ascertaining the *intention*of the parties to this agreement, and the Court explicitly declare, that where it appears from the contract, that it was made by *public commissioners in behalf of the public,*whether they were commissioners for the County or for the State, *such commissioners*are not personally bound for their contract.

In cases of public agents, the Government, or other public authority, is not bound, unless it manifestly appears, that the agent is acting within the scope of his authority, or he is held out as having authority to do the act, or is employed, in his capacity as a public agent, to make the declaration or representation of the Government. Indeed this rule seems indispensable, in order to guard the public against losses and injuries arising from the fraud, or mistake, or rashness, and indiscretion of their agents. *Story on Agency,*389. *Lee*v. *Munro,*7th Cranch R. 366.

No counsel for the defendant.

Nash, J.

There can be no doubt, that a public agent, acting in behalf of the public, may render himself personally liable. The inquiry here is, whether the defendant has so done.

The Act of Congress, passed in 1791, ch. 128, pointing out the duties of collectors of the customs, is of no further use in this investigation, than as it may serve to explain the anxiety, expressed by the defendant, that he might *326be enabled, through th.e aid of the intestate, to comply with the request from the Treasury Department. It appears that Mr. T. H. Blount had preceded the defendant in the office of collector of the port of Washington, and in the list, furnished him by the intestate, were several .omissions of bonds and judgments. This list was -embodied in his report, we presume, to the office. With a view to supply this deficiency and to ascertain if there were any further omissions, the requisition was made upon the defendant by the Department. The plaintiff’s intestate, Mr. Brown, is distinctly apprised of these facts, and is informed, that nothing is needed but a *list*of the bonds and judgments, &c,, not for the purpose of enabling the defendant to comply with his duty to the public, for the Act of. 1791 required him only to make a due return of the bonds *in his office,*and the case shows, that the bonds in suit in the District Court never had been in his office since his appointment, but had been put in suit b 'his predecessor. The information sought to be obtained by the defendant was of no personal, interest to him, any further, than, as a faithful public servant, he was bound to aid the Department in ascertaining what was due from its debtors. In all his letters, he informs Mr. Brown for whom the information is needed and why. The bonds are described as belonging to the office at Washington, and the letters are signed by the defendant as collector. There is not in any part of the written evidence the slightest proof that the defendant intended to make himself personally responsible, and that responsibility must be explicitly undertaken. *Hite*v. *Goodman,*1 Dev. & Bat. Eq. 365. *Gidly*v. *Palmerston, 2*Bro. & Bing 275. The plaintiff contends, that the records were made out by him, not for the Government, but for the defendant, to enable him to execute his official duty, and relies upon the language, used bjr the defendant, expressive of his fears, that he would suffer in consequence of the plaintiff’s *327neglect in complying with his request. We do hot so read the letters. The defendant, in each of his communi* cations, appears to guard against any idea, that the work was for his benefit. On the contrary, in each application, he states, it is made to enable him to comply with a *request*from the Department, ahd that the application is rendered necessary by the plaintiff’s intestate’s ovin neglect, as he had been informed, in not making out a perfect list for Mr. Blount. As to his fears of being injured by Mr. Brown’s delay, it might arise to him in several ways without embracing the idea, that the list Was necessary to him. We are of opinion, that the work was done at the instance, and for the use, of the General Government, and to it the plaintiff must look for remuneration, the defendant not having made himself responsible* either by contract or fraud.

The plaintiff further contends, that his Honor erred in not leaving the construction of the letters to the jury, as a matter of fact to be found by them. The letters were produced in evidence by the plaintiff to show the defendant’s liability, as containing the contract, under which the services were rendered. The contract then was in writing, and the intention of the parties is to be ascertained from it. This is admitted by the defendant’s argument; he does not pretend, that, if left to the jury, they could have looked out of the letters. If so, then it Was a pui’e matter of construction to be placed upon a written instrument, containing in itself every" thing necessary to its being properly understood. We think his Honor committed no error in the instruction he gave the jury — it was a question of law, and not of fact. The case now before us is not as strong as that of *Dameron*v. *Irwin*& *others,*8 Ire. 421, and the whole defence here is covered by it.

Per Curiam. Judgment"affirmed.