
    Swift against Hopkins.
    no7ap°peaf aft “DgSaencmtiMt‘ agents it will be vate contract.-
    Hi ERROR, on certiorari to a justice’s court.
    
      Hopkins, the defendant in error,
    brought an action against Swift, the plaintiff in- error, in the court below, for services performed, money paid, &c., and it was proved, at the trial, that the plaintiff below* being paymaster of a regiment of militia* in the town of Paris,- and being at Albany, on the subject of pay due to the militia, was employed by the defendant to go to certain persons in Madison and Oneida counties, to procure certain certificates, relating to the payment of the militia, and to bring them to Albany, which was done by the plaintiff. It did not appear what was the defendant’s office,, or whether he had any, when he so employed the plaintiff, but after obtaining the certificates, he was at Paris, and there paid the militia. The defendant admitted that he had employed the plaintiff to do the service, which he had performed to his satisfaction ; and on being asked by the plaintiff why he did not pay him, he' replied, that he could not make it a charge against the government,. Judgment was given for the plaintiff below, the defendant in error..
   Per Curiam.

Unless the contractor shows distinctly that, in making the contract, he expressly, or ostensibly, acted as a public agent, it must be deemed a private contract* The return does not show that Swift assumed to act- in ,an official capacity when he made this contract: and the reason assigned by him for refusing to pay, was, that he could not make a charge of it against the government, is decisive to show that it was a private contract.

Judgment affirmed.  