
    John Freeman versus William Otis.
    Generally a public agent is not personally liable on a contract made by him in behalf of the government But if by his interference he prevents the remedy, as against the government, he makes himself answerable. Or if he receives the money from the government, to enable him to fulfil his contract, and refuses to pay it over, he is liable to the party in an action for money had and received to his use.
    Case in assumpsit. The declaration contained four counts. 1. Indebitatus assumpsit according to the account annexed ; 2. Quantum valebant for the use of the plaintiff’s vessel, and the labor and services of himself and men; 3. Indebitatus assumpsit for money laid out and expended; and, 4. For money had and received to the plaintiff’s use.
    A trial was had upon the general issue, at the sittings here after the last October term, before Sewall, J., when the evidence was, that Joseph Otis, collector for the United States in the district and port of Barnstable, being aged, infirm, and incapable of business, his son, the said William Otis, performed the duties of the office, and had the whole control and management therein, as deputy collector, excepting that, for the most part, official papers and * accounts were in the name of the father, and issued with liis signature; that the said William, on the 2d of February, 1809, proposed to the plaintiff to charter or hire his schooner called the Betsy, as a revenue cutter, and to employ him as master, with such men as he, the said John, should engage and employ as a part of a crew, the said William reserving to himself, the right of engaging a mate, and the rest of the crew, to be attached to the custom-house, and in permanent service for six months, the vessel at 180 dollars per month, and the master and crew at the stated wages for the revenue cutters ; that the proposal and terms were acceded to on the part of the plaintiff, and, as the witnesses to the conversation of the parties understood it, the contract was then established.
    The witnesses present at the collector’s office, when this conversation took place between the parties, were James Freeman, Esquire, Seth F. Nye, then a clerk in the office, and Z. Nye.' And the said S. F. Nye testified to subsequent observations of the defendant, in which he spoke of the plaintiff as master of the revenue cutter. The said Z. Nye further testified, that in March, 1809, he was sent, by the defendant, to take- from the said schooner every thing belonging to the United States, to discharge her from the service, and to tell the plaintiff and the people employed in her, that he, the defendant, did not consider them as any longer under pay. This service the witness performed accordingly, about one month and six days after the agreement wras understood to have commenced. The said J. Freeman also testified that some time in March, 1809, after the vessel was discharged, he was present at the collector’s office, when the plaintiff exhibited his demands, as made in this action, for the hire of the vessel, &c., to which the defendant answered, that he was not then furnished with the money, but would pay when furnished ; but the witness * heard nothing said of an audit of that account, or of its allowance at the treasury, as requisite to the payment. Further evidence of the said contract appeared in certain letters read at the trial, which passed between the plaintiff and the defendant, in February, March, and April, 1809. The said S. F. Nye further testified to a remittance of 1000 dollars made to the collector, in April or May, 1809, expressly applicable to the payment of revenue cutters, and to his having seen a letter in the office from the comptroller of the treasury, recommending a settlement of the demands in question, and to avoid a lawsuit. From a lettrr of the comptroller of the treasury to the plaintiff, dated December 19, 1809, it appeared that his claim against the United States liad been decided to be inadmissible, upon the ground that, according to the representation of the defendant, he had been paid for all services.
    On the part of the defendant, it appeared that his proposal, made as aforesaid to the plaintiff, was pursuant to directions received from the secretary of the treasury, dated January 16, 1809, and under authority from the president of the United States, by virtue of an act of Congress passed on the 9th of the same January. Official letters and accounts were also produced, to prove that the remittance mentioned by S. F. Nye was in part received in February or March, 1809, and applied in paying vessels and men previously employed in the service of the United States; and further to justify his refusal to pay the demand in question, the defendant produced an official letter of the secretary of the treasury, dated July 2, 1809, referring to certain representations made by the defendant, whose letters to the secretary were also produced. These contained representations, that the supposed hiring, &c., for which the plaintiff has demanded payment, was a proposal only on the part of the defendant, and nota conclusive engagement or contract. *Upon this evidence, the jury were directed to consider whether a contract was proved, commencing from the 2d of February, 1809, for the hire of the plaintiff’s vessel, himself, and the men employed on board, as part of a crew. The jury were further instructed, that the defendant having authority to make i contract of this description.for the service of the United States, and having been professedly a public agent in effecting this contract, he was not to be considered as personally liable thereon, unless he had become so by a subsequent interference, injurious to the plain tiff,' or by withholding payment, when provided with the means, and denying the existence or true purport of a contract made by himself personally ; whether, in doing so, he was wilfully or through mistake false, and thereby preventing the allowance and payment of the plaintiff’s just demands ; that such an interference would render the defendant personally liable upon the contract itself, if the plaintiff had succeeded in proving the contract, which he had made the ground of his demand. The jury found a verdict for the plaintiff upon the last count of his declaration, which was taken subject to the opinion of the Court, the defendant moving for a new trial.
    
      Dana,
    
    in support of the. said motion, urged that the judge at the trial had misdirected the jury in a matter of law; contending that the defendant, having contracted merely as an agent for the public, was not personally liable for a failure of the contract. His after-wards interfering, even if thereby he prevented the plaintiff from the receipt of the money, could not alter the nature of the original contract, so as to make him liable to the plaintiff, as upon the contract. The United States only are responsible for the fulfilment of it. Nor, if the defendant actually received the money for the purpose of paying it to the plaintiff, is he answerable to him in an action for money received * to his use; for withholding the money intrusted to him by the government, he must answer to the government.
    
      Sprout contra.
    The defendant having disavowed the contract, as-binding on the government, he must be piersonally answerable, or the plaintiff is grossly defrauded. The defendant made the contract ; he has received" the money from his employers to enable him to fulfil it; he retains that money in his pocket; and he says to the government that the contract was not binding on their part. A mere statement of the facts renders all reasoning unnecessary.
    The cause stood continued nisi for advisement, and at the ensuing term at Taunton,
    
   The Court

said, that where a public agent makes a contract in the name and behalf of the government, it is a point well settled, that the agent is not liable to the action of the party contracted with, who must look to the government. But if such agent should deny to the government that he had entered into such contract, and by such interference prevent the party from his remedy as against the government, he must be personally liable, as he has, by his conduct, in effect disavowed his acting in character of a public agent On this ground we are of opinion that the verdict is right. Further, if the jury believed that the defendant had received from the treasury the money which was intended to meet the plaintiff’s demand, and had refused to pay it over, they were correct in charging the defendant on the plaintiff’s count for money had and received,

Let judgment he entered upon the verdict. 
      
      
         [It is well settled that, where a man acts as agent for the public, and treats in that capacity, he is not personally liable. — Brown vs. Austin, 1 Mass. Rep. 208. — Davis vs. Jackson, post, 490.—Macbeath vs. Haldimand, 1 D. & E. 180—182.— Unwin vs. Wolseley, 1 D. & E. 674. — Rice vs. Chute, Stanley vs. Hawkins, Martin, 55,1 East, 582. — Myrtle vs. Beauer, Walker vs. Swaitwort, 12 Johns. Rep. 444, 1 East, 135. — Hodgson vs. Dexter, 1 Cranch, 345. — Allen vs. Waldgrave, 8 Taunt. 566. — And in Gidley vs. Palmerston, (7 Moore, 91, 3 B. & B. 275,) it was held that an action of assumpsit could not be maintained against the secretary at war, by a retired clerk of the war office, for his retired allowance, although such allowance was included in the yearly estimates drawn for by such secretary, and received by him, as applicable to such specific allowance, on the grounds that the secretary is only chargeable in his public and official character, and that an action cannot be maintained against him, as such, for any thing done by him in that character, although it may amount to a breach of employment, and constitute a particular and personal liability, as it would tend to expose him to an infinite number of actions to be brought by any person who might suppose themselves aggrieved. And in Rice vs. Chute, Lord Kenyon said, "61 that he cuuid not conceive how the captain of a troop could be personally responsible for forage furnished to the troop, whether he had received any money for that purpose, or not? — Ed.]
     