
    P. H. Hammarskold vs. William J. Bull and others.
    Defendants, known public agents, were sued upon a contract made by them in their official capacity. The writ and declaration were against them by name, styling them by their official title, “ Chairman and Commissioners for the New State Capitol;” and the bill of particulars was headed, “Commissioners of the New State Capitol to” the plaintiff, “Dr.”: — Iielcl, that defendants, if notdiable to be sued upon the contract, must proceed to show it in the usual mode, by demurrer, motion for nonsuit, or in arrest of judgment; and that a motion to quash the proceedings could not be entertained.
    Proceedings in a civil action will not be stayed for irregularity, unless the defect be so substantial as to make the proceedings null and void.
    Dor irregularities and defects, exception must as a general rule be taken in the mode prescribed by the rules of pleading'and practice; as by plea in abatement, demurrer, motion for nonsuit, or in arrest of judgment.
    Where the matter is clearly not within its jurisdiction the Court may at any time, of its own motion, or upon suggestion of party or friend, stay further proceedings,
    Although as a general rule public agents are not personally liable upon contracts made by them in their official capacity, yet as there are exceptions’to the'rule, it follows, that proceedings against them to subject them to personal liability are within the jurisdiction of the Court; and the sufficiency of the allegations, and the proof, to subject them to personal liability, must be judged of by the Court upon exceptions taken in the usual and prescribed mode.
    BEFORE O’NEALL, J., AT RICHLAND, SPRING TERM, 1855.
    This was an action of assumpsit. The writ directed the the sheriff “ to attach the bodies of William J. Bull” and the other defendants, naming them,” Chairman and Commissioners of the New State Capitol, &c., “to answer to P. H. Hammarskold in a plea of trespass on the case and so forth; and also for certain promises and assumptions by the said William J. Bull and others, the defendants, to the said” &c., “made and not performed,” &c. The declaration, which was filed the 30th January, 1855, after reciting that the defendants, naming them, “ Chairman and Commissioners of the New State Capitol, were attached to answer,” &c., proceeded, in several counts, and without further reference to their official capacity, to charge them as for a personal liability upon promises made by themselves. The bill of particulars, filed with the declaration, was headed “ Commissioners of the New State Capitol to P. H. Hammarskold, Dr.” The items were numerous: — “ To five per cent, on contracts for iron fence,” &c.; “ my own salary as constructing and superintending architect, fire-proof building“ salary of assistant architect“ full right to my original design for the New State Capitol,” &c., &c. The balance claimed, after allowing sundry credits, was twenty-five thousand three hundred and thirteen dollars and fifty-five cents. An order for judgment was entered on the 7th March, 1855.
    The report of his Honor, the presiding Judge, is as follows :
    “ In this case the defendants were appointed in 1851, by the legislature, to take charge of the ‘ fire-proof building,’ which afterwards was extended to the ‘New State Capitol,’ of which they were also continued as Commissioners, and in which capacity they are still acting. The plaintiff was employed as a Constructing and Superintending Architect, at a salary, and I suppose was to be allowed commissions at five per cent, on expenditures for the work, a salary for an Assistant Architect and Draftsman, for materials and expenses about the work, and for travelling expenses. This was ‘continued until 1st June, 1854. This statement is collected from the bill of particulars, filed with the plaintiff’s declaration. To these charges others are added in it for the plan of “The New State Capitol,” and other incidents attending the work, amounting in the whole to thirty-three thousand six hundred and seventy-two dollars and three and a-half cents, from which are deducted credits amounting to eight thousand three hundred and fifty-eight dollars and fifty-five cents, leaving a balance of twenty-five thousand three hundred and thirteen dollars and fifty-five cents, for which this action is brought. The defendants in the writ and declaration are styled ‘ Chairman and Commissioners for the New State Capitol.’ The bill of particulars filed with the declaration is headed ‘ Commissioners' of the New State Capitol, to P. H. Hammarskold.’
    
      “ A motion on the part of. the defendants is made to quash the writ and proceedings, on the ground that the cause of action set out is against them as agents merely of the State, in a work entirely under the direction of the Legislature, and dependent upon their will for appropriations to carry it on, and that therefore no action will lie against them. That this ■abstract proposition is legally true, I have no doubt. The doctrine is exceedingly well stated by Gibson, J., in Gooh vs. Irvine, Serg. & R., 497, ‘ a public agent treating for the government, but neither asking nor receiving credit for himself, is altogether irresponsible on any contract he may make in that capacity, and wherever his promise or engagement is connected with a subject fairly within the scope of his authority, it shall be intended to have been made officially, and in his public character, unless the contrary distinctly and expressly appear.’
    
    “ This is not denied by the plaintiff, but he alleges that the defendants are to be regarded as a quasi corporation. That there are cases in which public agents may be so treated, I admit. When they are constituted for a particular district, for a particular purpose, and powers are conferred upon them to raise the means by which they are enabled to pay any contract which they may make, or a specific appropriation is made for the entire work to be paid to them, then it may be that they would be liable as a quasi corporation to an action. Such are the cases against the Commissioners of the Roads and the Poor; and such may be cases against the Commissioners of Public Buildings where a specific appropriation is made for the building of a goal or court-house. But I" do not think these defendants stand in any such position — they are the mere agents of the Legislature, constituted to carry on a public work by annual appropriations, and subject to the revocation of their powers at any moment the Legislature might think proper. The utmost, however, which could he claimed regarding them as a quasi corporation, would be to charge them with so much money in their hands of the appropriation, and to which the plaintiff was entitled. But the bill of particulars makes no such claim. This covers and disposes of the second head under which the plaintiff claimed, to wit.: That the Legislature had made an appropriation for the work to be drawn by the defendants. Independently, however, of this remark made, and which disposes of the point, I may say I do not think these defendants could be sued by any one of their employees, on account of the general appropriation for “ The New State Capitol.’ They cannot be called thus to an account for it, and on showing an unexpended balance in their hands, be held liable to any one, who with others claiming separately might be entitled to it pro rata. They are liable to account to the State, and to the State alone.
    “ The plaintiff contends that the words l' Chairman and Commissioners of the New State Capitol,’ are mere deseriptio personce ; and that they are charged individually, personally, and not as an aggregate body. It is plain, on reading the declaration and bill of particulars, that this is not the case. The bill of particulars not only charges virtute officii, and not personally, but it shows that the whole subject matter was within the scope of their authority as public agents; and the legal presumption is, that the contract was official. Indeed the doctrine of deseriptio personce cannot apply to verbal or implied contracts. It is properly applicable to written contracts.
    “ This examination of the plaintiff’s grounds of action plainly shows that his action is not maintainable. It only remains to inquire, ought the motion to quash be granted, or should the defendants be left to avail themselves of the objection on the trial. The parties defendants have the right to pursue either course. Where the true nature of the case is disclosed by the record, and does not depend on matters aliunde, the motion to quash is preferable, for it ends the matter without subjecting the defendants to the costs of a trial. The motion .to quash the writ and all the proceedings is granted.”
    The plaintiff appealed, and moved this Court to reverse-the decision of his Honor on the following grounds:
    1. Because it was irregular to quash the writ and proceedings after interlocutory judgment had been entered up against the defendants, who should have made their defence in the usual mode.
    2. Because if it was necessary that the declaration should have stated the fund, or the express promise, his Honor ought to have granted leave to add additional counts to the declaration; and, if need be, a motion for such leave will be made in the Appeal Court.
    8. Because the said decision was erroneous, the defendants being liable in law, either as a quasi corporation, or in respect of the fund in their hands, (which they claimed and held forth as a means of meeting their contracts,) or in consequence of express promise — which the plaintiff ought to have been allowed to prove, as also any other facts sustaining his claim.
    4. Because the proceedings are so framed that the defendants are charged, either in their individual or official capacity, according to the proof, so that (if need be) the terms “ Chairman and Commissioners for the New State Capitol,” may be regarded as mere “ descriptio personarum,” and that the de*fendants are liable in their private capacity.
    5. Because a contract with the plaintiff not being denied by the defendants, (nor could it have been denied either in fact or under the state of the pleadings,) some means of enforcing that contract must exist; and the only means were either:— 1. Applying for a mandamus — to which the answer would have been that a madamus was not applicable to such a case. 2. A bill of injunction stopping the public works until the plaintiff’s papers were restored and claims allowed. 3. Applying for relief to the legislature, who would thus have been subjected to a tedious and interminable investigation ; who had made no contract with the plaintiff, and who had parted with the fund out of which payment was to be made; or, 4. (Lastly.) To bring his claims (for services on the new State Capitol and on the old State House, for his expenses for materials purchased, for interest on moneys advanced, and for the value of his plans and designs, which the commissioners have been using,) before the regularly authorised tribunals of the land, viz: a judge and jury, who would have full time and opportunity and means to decide on the merits of the case.
    6. Because the legislature by their Acts and resolutions, appointing the defendants a permanent Board of Commissioners for a particular purpose — authorizing them ¿o contract, and furnishing them with a specific appropriation, &c., &c., — gave to these Commissioners as much legal existence, with capacity to sue, as Commissioners of Roads and the Poor, or of Public Buildings, or any other quasi corporation as; and the defendants themselves have repeatedly and in various ways recognised their own legal existence — more especially in their contracting with and employing and dismissing the plaintiff.
    7. Because the application for and the granting of the mandamus at this very term in the case of the State ex relatione, Thomas J. Goodwyn and others vs. Ashmore, Comptroller General, and Erean, Deputy Treasurer, not only distinctly recognised the legal existence of the defendants, and their capacity to sue and liability to be sued, but it put them, as a permanent Board of Commissioners for the purpose of carrying on an exceedingly important work in the exclusive use and control (until their successors shall be appointed and shall enter on the duties of their office) of a very large fund, specially appropriated to meet their contracts ; and it is respectfully submitted that the legitimate result of deciding that the defendants are not, under the circumstances, liable to be sued, would not only contravene the evident intention of the legislature, but would vest in the defendants an irresponsible power, utterly inconsistent with private right and well established principles of law.
    The case was argued at May Term, 1855, and again at the present Term by
    
      Bellinger, Arthur, for appellants, and by
    
      BeSaussure, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

In the discussion of this case, attempts have been made to range the order which was made for quashing all the proceedings, either under the head of staying proceedings fpr incurable defect, or under that of dismissing proceedings for want of jurisdiction.

Proceedings are sometimes upon motion stayed for irregularity; but all objections for mere irregularity are so reacjily waived and remedied, that the general rule in respect to them is, that they must be made at the earliest opportunity, or, as it has been expressed, in the first instance, else they will not avail A different rule however prevails as to substantial defects which make the proceedings null and void. As that which is void cannot be confirmed, these defects have their proper influence whensoever they may be brought to view; and the Court only declares the nullity which before existed, when. it refuses upon motion grounded on such a defect, to let further progress be made in a proceeding which is vain and useless. These defects have the same effect, whether the motion be made before or after judgment. They will generally be found to arise from some matter dehors the record, and to exist in cases where there has been a cognovit, or a judgment by default, or some event of a suit different from the actual trial of an issue.

Apart from these anomalies of irregularity and defect, the rules of pleading and practice direct the course to be taken by each party in most of the conceivable conditions of a cause, and settle the order in which allegations and objections shall be made, and the effect' of all omissions, misstatements, waivers and defaults. That which was ground for plea in abatement or special demurrer cannot be recurred to after plea in bar, general demurrer, or interlocutory judgment for default. If the plaintiff has in a count so stated his case as to show no sufficient cause of action, the defendant may demur. A verdict for plaintiff cures many omissions and defective statements in a count, which are not inconsistent with its allegations, and which it must be presumed were proved before the verdict could have been obtained. If after proper intendments and presumprtions made to support a verdict, the record still shows that no cause of action has been stated by the plaintiff, the defendant may, before entry of judgment, make in the Court of Appeals his motion in arrest of judgment. And matter which would plainly be sufficient upon motion in arrest of judgment, will upon the trial sustain a motion for nonsuit; for the Court will not idly render a judgment which it sees a party may arrest and desires to arrest. But as on the motion in arrest intendments and presumptions are made to support the verdict, so upon the motion for nonsuit the proof which has been properly heard will be considered; and if, with the aid of that proof, a verdict would be sustained, nonsuit for defect of the count will not be granted. Neither a defendant moving for nonsuit, nor one moving in arrest is in the same condition as if he had demurred. It follows that a defect, which upon demurrer might be fatal, cannot be presented on motion before trial, without demurrer and without proof, unless it is of such a kind that even after judgment it would vitiate the proceedings.

Under this view it suffices to ask ourselves if a judgment against these defendants personally rendered upon these proceedings would be a nullity. If not, why should they upon motion, before trial, be allowed to bring under consideration matters which would serve them upon motion in arrest of judgment or motion for nonsuit ? If the matters are curable by verdict or proof, why should a demurrer be tried on motion before issue joined? If the matters have been waived, why should there now be an indirect recurrence to them? It is useless to say more as to imputed irregularities or defects in the proceedings.

But it is said that the Court had not jurisdiction, and that therefore the proceedings were properly dismissed from the forum.

Every Court for its own dignity’s sake should abstain from all futile proceedings — of its own motion or upon suggestion of party or friend, it should at any time stop an attempt to obtain its judgment or invoke its power in a matter which is clearly not within its jurisdiction, and as to which all that might be done by it, or in its name, would be void. Privilege may be waived by neglect to plead it in due time; but an objection to the jurisdiction, because a party to be affected by the judgment is not before the Court, or because a party or the subject 'matter of the suit is exclusively within the cognizance of another tribunal, is at all times fatal. The Court may hear such objection in any summary mode; and the recognition of its validity must result of course in the declaration, that all-which has taken place in the cause touching the person or matter out of the jurisdiction is void, and that nothing more of that nature shall be done.

It is said here that the State cannot be sued — that the Court has no power by judgment against agents of the State to draw money from the public treasury — that the plaintiff’s statements on the record show that he is proceeding to make the defendants liable on a contract made with them as public agents— and, that as a judgment for him would be void, it should not be rendered.

The Court is a superior one in favor of whose jurisdiction all presumptions should be made; but it pretends not to have power either to render judgment against the State or to draw money from the public' treasury without legislative appropriation. It has, however, jurisdiction over all persons, not especially exempt — officers as well as private individuals — corporations and quasi corporations, as well as natural persons. It has cognizance of all ordinary contracts, as well those made with public agents as others. The defendants are then within its jurisdiction — the subject matter of the suit is a contract for work and labor, plainly within the jurisdiction; and the objection is, that the plaintiff has stated his case so as to show that he contracted with thé defendants as public agents. Let this be admitted, and let it be further admitted that, in the absence of plain proof to the contrary, public agents shall be presumed to have contracted in their public capacity, and a party who contracted with them shall be presumed to have looked to the government and not to the agents. The result, even upon the supposition that there is no evidence to rebut the presumption, is only that the plaintiff cannot maintain his action according to his own showing. Why then should not the defendants demur ? Or, if they are unwilling to risk that, and do not dread the effect of proof on the trial, why should they not move for a nonsuit, or in case of a verdict against them, move in arrest of judgment, according to established practice ? Why should the plaintiffs proof be excluded, and a special practice be adopted for his ease ? A case is not out of the jurisdiction, because it cannot be maintained; and, even though it be bad, it is entitled to a regular hearing.

Government agents are personally responsible if they have by express agreement made themselves so; — if their public character was unknown to the party they contracted with — if they have obtained money illegally under color of office, and received notice of an opposing .claim before they paid the money over; — if they exceeded their authority in making the contract — if they have in hands a fund appropriated to meet the contract, or have power to raise a public fund for that purpose. By showing any of these matters, the presumption which ordinarily attends a contract with a government agent is rebutted. As Chancellor Kent says, the distinction between public and private agents “terminates in a question of evidence.”

It is argued, however, that the plaintiff’s case is not cognizable, because he cannot insist on any rebutting matter in contradiction of his count, and that that shows a contract with known public agents, and contains no averment of their express agreement for personal liability, nor of funds in their hands, nor of authority exceeded by them. In this argument the premises do not lead to the conclusion — they oppose it. Impliedly it is admitted that judgment may under proper allegations and proofs be had against a public agent, and, consequently, that a suit against such an agent is within the jurisdiction of the Court; — for the sufficiency of the allegations and proofs must be judged of by the Court. The very order which has been made for quashing the proceedings is an exercise of jurisdiction in the cause — a decision made in an unusual mode, not that the defendants cannot be sued in the Court, but that the plaintiff has pleaded unskilfully, or proceeded irregularly.

Let us however see what appears upon the face of the proceedings. 'The writ is against the defendant’s nominatim, “ Chairman and Commissioners for the New State Capitol.” If this would leave it doubtful whether the plaintiff was suing individuals, or was suing a quasi corporation which they were supposed to constitute, the subsequent part of the writ is more plain, in which he requires answer to be made “for certain promises and assumptions by the said William J. Bull & others, the defendants, to him made and not performed.” It is not easy to conjecture plausible grounds upon which a motion could have been made to set aside the writ standing simply.

The declaration recites the writ, and then alleges that “the said defendants ” being indebted, assumed, &c.

So far, it surely cannot be said that on the face of the proceedings plainly appears an action against' the defendants as public agents, or as a quasi corporation. But the bill of particulars, enumerating the items of work and labor, is headed “ Commissioners of the New State Capitol, Dr;” and this, it is said, makes the allegations of the declaration plainly amount to the statement of a contract made with the defendants as public agents.

It is not indispensable, to the decision of the question now before us, to oppugn this inference which has been-drawn from the bill of particulars; but an examination of the purpose and effect of a bill of particulars, will show that this inference (from which the plaintiff’s statement of an action not maintainable, the defendants nonliability to suit, and the want of jurisdiction in the Court, have been deduced) is itself far from being clear.

A bill of particulars is a specification of the items of a demand, which has been stated in general terms in the declaration. It is intended to give notice to the defendant. It differs from the declaration inasmuch as the one declares the nature and legal effect of the plaintiff’s claim, the other its component ingredients. It is not to be construed with the strictness applied to a declaration, for as Heath, J., observed, “ We must not drive parties to special pleaders to draw their bills of particulars;” and, therefore, in an action for money paid, a bill of particulars was held sufficient in these words: “ To seventeen firkins of butter ¿£55;” this serving to show, as Mansfield, C. J. said: “ That the claim for money had arisen on account of this butter.” For want of a bill of particulars, where one is necessary, the defendant may decline to plead and may move the Court to take the declaration from the file, or, as we have decided, may demur specially; but it is said, that where there is a bill of particulars, the plaintiff’s proof shall not be inconsistent with it. This is true in its proper sense. The plaintiff shall offer no evidence of an item notin the bill; but an unnecessary statement, which accompanies the specification of items, should be construed so as to consist with the general demand made in the count, rather than to contradict it, and should not exclude proof that would consist with both the demand and the specification. If, to a count for goods sold, to defendant A., a plaintiff should annex a bill of particulars specifying goods sold, and headed “ B, Dr. to plaintiff,” evidence offered by the plaintiff to show that A. had directed him to furnish goods to B, upon A’s responsibility, would be consistent with the purpose of the bill of particulars, and with the allegations made. The question would be, to whom was the credit given ? The form of the bill of particulars, like an entry in a day-book, would be evidence that the credit was given-to B, but neither would be conclusive. And here the heading of the bill of particulars would be evidence to strengthen the ordinary presumption, that the plaintiff dealing with known public agents, had relied only on the credit of the State; but it is a rigid construction, which holds that this heading amounts to an admission of what is thus presumed, so irrebutable that evidence shall not be heard to show a special agreement under which the defendants, known to be acting as public agents, expressly assumed a personal responsibility. If, upon proof, a verdict should be rendered for the plaintiff, could not the intendment be made that an express promise had been shown, or something else proved' which would sustain the verdict ? This would be only the presumption of something which ought to have been proved before the verdict could have been properly obtained, and which even if its allegations wpuld have been held essential on general demurrer, is not inconsistent with the allegations that have been made. Intendment may not contradict, but it may supply omissions.

But suppose the plaintiff has plainly shown that he contracted with the defendants as public agents and relied only on the ciedit of the State. It follows that he cannot recover. If that is really plain on the face of the proceedings and is fatal to the action, it would be seen as well on demurrer as on motion. If it is an incurable defect, it would serve for nonsuit on the trial, or arrest of judgment afterwards. There are many cases where government agents have been sued, but none has been found where proceedings were quashed on that account. The ease of the Governor of Quebec is a leading case to show that without special circumstances, public agents do not incur personal liabilities; but that, like all the other cases on the subject, shows that the Court actually exercised jurisdiction to hear and determine. The Baltimore case against Mr. Jefferson, President of the United States, and the U. S. Marshal, and the case where a mandamus against Mr. Madison, Secretary of State, was prayed in the Supreme court, afford no countenance to the notion that from considerations of public policy, public officers are, like the., sovereign, above the process of the courts. Mr. Dexter made defence in an action brought against him on a contract made by him as Secretary of War. Lord Palmerston answered and submitted to the judgment of the Court, in the case of an implied assumpsit alleged to have arisen from his acts as Secretary at War. The law concerning the liability, of public agents is too well settled, for alarm to be excited by a suit against such an agent. We must not suppose that in this case the law will not be enforced, or that truth will not be perceived, and therefore by departure from regular practice, endeavor to give speedy immunity to those, who by established principles, in the ordinary course of justice, will be safe if truth is on their side. The mere liability to actions, even unsuccessful ones, it has been suggested, may deter fit and prudent persons from accepting office. We cannot therefore exempt all officers from personal accountability, without inquiry into the circumstances of cases, nor can we know what a case is until we have heard it. Every man is liable to groundless and malicious suits; the law gives, at least, costs as a reparation for the injury done to him by such a suit, but it cannot in justice and expediency restrain its tribunals from hearing complaints made even against those to whom office has been entrusted.

It is ordered that the order made for quashing the writ and other proceedings in this case be set aside ; and that the defendants have leave, at or before the next term, to vacate the order for judgment on the usual terms.

Withers, Whither, Glover and Munro, JJ., concurred.

O’Neall, J.,

dissenting. In this case I adhere to my circuit decision, and I deeply regret that my brethren have thought themselves justified in holding that the State may be made amenable to our jurisdiction by suing her officers, and agents. The latter acting without pay, are, indeed, in a condition very much to be pitied, if, on every contract made about the public business, they are liable to be sued. Has the Court any jurisdiction of such a case ? I utterly deny it.

Blackstone in his 3d vol. 255, tells us that no action lies against the King, and of consequence against the State, with us. Hogs the same rule hold as to officers representing the State, and acting for it? In Macbeath vs. Haldemand, 1 T. R. 172, the Governor of Quebec was sued for work and labor, &c.; it appeared that the plaintiff’s claim rested upon stores furnished for the public ; it was contended there as here, that he might be charged by virtue of his directions, partial payments, &c.; the Court held that he was not liable to be sued. What is that but saying the Court has no jurisdiction to-charge the public through its officers ?

In the Treasurers vs. N. G. Cleary, 3 Rich. 372, the defendant relied on a debt due by the State as' a discount, but which the legislature had directed to be discounted from a debt due by the defendant to the Rank of the State. Without entering into the propriety of this direction, the Court by Johnson, J., declared that, “a suit will not lie against the State by an individual,” and hence the discount, which was considered in the nature of an action against the Treasurers, was rejected. Let us examine now and see in what point of view the defendants are presented in this action, and then inquire,' if they are sued as public agents, how and in what way the Court shall discharge its duty to them ? They are sued as Chairman and Commissioners of the New State Capitol. Is this a public capacity ? How can it be denied ? Was the work for which compensation is claimed done for the State ? It is only necessary to read the resolutions set out in the report to understand that it was. This public character in which the defendants are charged is continued through the declaration. How can the plaintiff deny the character which he has given to the defendants ? They say it is true, and when parties are agreed in their statements, I have never known the Court to deny what is thus admitted. Yet the plaintiff here modestly asks that, and as I understand the Court, they concede to him, he may charge the defendants, notwithstanding the public character he has assigned to them, as individuals. But it is not only the character which he has assigned to them that makes it imperative, it seems to me, that the defendants should be regarded as public agents, but that they have contracted according to the plaintiff’s declaration about a public work, as public agents., Such is the bill of particulars, “ The Commissioners of the. New State Capitol to P. H. Hammarskold.” The items charged all relate to a public work and all rest upon a public engagement, “ such as salaries.” But it is said the bill of particulars is no part of the declaration. That is true as to the count, and yet the want of it is- cause of demurrer. So, too, the proof must conform to it. Suppose this bill of particulars •proved as set down, the plaintiff never can recover a cent against the defendants. For it will be charges against them for services rendered to the State, and I hardly think any-Court exists or will exist, which will give judgment upon them. Suppose, however, the recovery could be had, is the judgment to be against them as individuals ? Hardly. The plaintiff must stick to the character in which he has sued them. It must be against them as Commissioners of the New State Capitol. Such a-body does not now exist. How is such a judgment to been forced ? But really it is to my mind, monstrous to talk about proceeding in such a case. We have no more jurisdiction of it, than we would have of a case against a consul of a foreign government. But it is said a motion to quash the proceedings is unheard of. In Manhardt vs. Suderstrom, 1 Binn. 138, the defendant, a consul, was sued, arrested, held to bail, a declaration was filed de bene esse, the bail bond was sued, and judgment obtained, then special bail was enterd, and the defendant suggested he was the consul of Sweden, claimed his privilege of exemption from suit, and under protestation pleaded the genera] issue. Is not all this equal to appearance and interlocutory judgment here ? So it seems to me. Yet in that case a motion to quash the proceedings was entertained and granted. This, it seems to me, is enough for my purpose. I have shown a precedent for just such a course as I pursued, and I think it is plain, that we have no_ more jurisdiction of a suit against the State’s agent than the Court of Pennsylvania had of the Swedish consul. This case, however, is to be a dangerous precedent. For we shall be called on, on its authority, to charge the Governor, the Treasurers, and more particularly the gentlemen now in charge of the New State Capitol, on every undertaking about the public business.' The Court will surely have enough to do, in maintaining such an assumption.

Motion granted. 
      
       Sellon’s Prac. 102.
     
      
      
         Hewitson vs Hunt, 8 Rich.
     
      
      
        Mills & Co. vs. Dickson & Mills, 6 Rich. 492; 2 Brev. 176.
     
      
      
        Gale vs. Hays, 3 Strob. 456; 2 Brev. 370.
     
      
       5 Rich. Eq. 495.
     
      
      
        Miller vs. Miller, 1 Bail. 242; Mannhardt vs. Suderstrom, 1 Binn. 142.
     
      
      
         6 Pet. 691; 9 John. 239; 3 Barn. & Ald. 213; 3 Strob. 3.
     
      
       Story on Agency, Sect. 306—7.
     
      
       2 Kent’s Com. 633.
     
      
      
         Smith vs. Lehr 1 Mille, 240; Leigh's Prac. 374; 1 Camp. 69, note; Brown vs. Hodgson. 4 Taunt. 189.
     
      
      
        Davis vs. Hunt, 2 Bail. 412.
     
      
       Com. Dig. Pleader, c. 87.
     
      
      
         Macbeath vs. Haldimand, 1 T. R. 172.
     
      
      
        Stoben vs. Motte, 13 Vermont, 175.
     
      
      
        Marbury vs. Madison, 1 Cranch, 673.
     
      
      
        Hodgson vs. Dexter, 1 Cranch, 345.
     
      
      
        Gidly vs. Palmerston, 3 B. & Bing. 275.
     