
    THE TOWN OF HANOVER vs. SAMUEL EATON et al.
    
    The selectmen of a town, being ex officio overseers.of the poor, may bind town, by a contract, not to take advantage of any defects in a notice given by another town, that a pauper has been relieved. And, if such contract be made expressly in behalf of the town, the selectmen will not be personally answerable for the breach of it
    Tins was- an action of assumpsit, upon a written agreement, as follows :
    “ The subscribers, in behalf of the town of JVeare. here- “ by acknowledge notice to have been given us by the se- “ lectmen of the town of Hanover, in relation to the support of the family of John Kimball, for which said selectmen of a Hanover claim payment of us, and engage to take no ad-i£ vantage, and will not hold them to furnish evidence of said “ notice having been done in the form prescribed bylaw. 44 This acknowledgment extends to all claims for said sup-u port, from the 8th ■March last past.
    SAMUEL EATON, ) Selectmen of ABRAM MORR1L, $ Weare.
    “ August 30, 1816.”
    The cause was tried here, at November term, 1822, upon the general issue, when the making of the written agreement Was admitted; and it appeared in evidence, that the defendants were a majority of the selectmen of Weare, and were ex officio overseers of the poor. It did not appear, that any vote had been passed by the town, authorizing the defendants to make the contract. On the trial of the cause, to which the said agreement related, the town of Weare did object to the notice, and obtained a verdict.
    A verdict was taken for the, plaintiff, subject to the opinion of the court, upon the abovedase.
    Bell, for the plaintiffs.
    
      R. Fletcher, for the defendants.
   Richardson, C. J.

Incases of this kind, the question is, did the agent intend, and had he authority, to bind his principal ? And this intent is to be collected, not only from the written contract, but from the circumstances of the parties at the time. Hodgdon vs. Dexter.—1 Cranch 345, Unwin vs. Woolsey.—1 D. & E. 674, Mac Beath vs. Haldimand.—1 D. & E. 172.4 Mass. Rep. 595, Tippetts vs. Walker.—5 do. 164.-9 do. 335.

There is in this respect no difference between an agent of government, and an agent of an individual. 15 John. 1, Rathbone vs. Budlong.

The first question is, had the defendants authority to bind the town '/ On this question, we entertain no doubt. It lias never been doubled in this state, that counsel employed by a town to manage a cause, might waive any objection to a notice, and hind the town ; and it hardly admits of a question, (hat the overseers of the poor have as mm h authority in this respect as counsel. 12 Mass. Rep. 307, Embden vs. Augusta.—16 do. 102.

The next question is, clid the selectmen in this instance in* tend to bind the town ? They sign the contract as selectmen, and state in it that they act in behalf of the town ; and we entertain no doubt, that the understanding of both parties was, that the town of Weave should be bound. It follows, that these defendants are not liable.

Verdict set aside, and plaintiffs nonsuit.  