
    Joseph S. Copes vs. James E. Matthews.
    In the ordinary course of things an agent, contracting in behalf of the government, or of the public, is not to be presumed to have bound himself personally, nor is it to be presumed, that the party dealing with him in his public character, means to rely on his individual responsibility; but the contrary may be shewn by proof, or circumstances which clearly establish an intention between the parties to the contract to create and rely upon a personal responsibility on the part of the public agent.
    M. being auditor of public accounts, was sued in assumpsit by the assignee thereof, for value on this writing : “ W. wishes to anticipate his salary from the first of November, 1844, to November 1, 1845 ; he- has discharged his duty faithfully in my office; I shall continue W. in the office until my time expires, which is November 1, 1845, and will issue his pay monthly, as the law allows, and will pay over to the holder of this obligation at the rate of eight hundred dollars per annum in treasury warrants.” The writing was signed “ M., auditor of public accounts ; the declaration averred as a breach, that M. had not paid the eight hundred dollars, but did not aver, that W. had performed the services: Held, that a demurrer was properly sustained to the declaration.
    In error from the circuit court of Hinds county; Hon. George Coalter, judge.
    Joseph S. Copes sued James E. Matthews, in the following declaration: “For that’heretofore, to wit, on the 7th day of November, 1844, at Jackson, to wit, the county aforesaid, the said defendant made his certain writing, or letter of credit in these words and figures, to wit: “ Mr. Jas. Wade, wishes to anticipate the amount of his salary from the first November, 1844 to first November, 1845. Mr. Wade has discharged his duty faithfully as clerk in my office. I shall continue Mr. W. in the office until my term expires, which is, as above stated, until first November, 1845 ; and will issue his pay monthly as the law allows; and will pay over to the holder of this obligation, at the rate of $800 per annum, which will be $66.66§ per month in treasury warrants. Jackson, Nov. 7th, 1844.
    (Signed,) James E. Matthews,
    
      Auditor of Public Accounts.''1
    
    “And the said James Wade, to whom the said writing or letter of credit was delivered and given, afterwards, to wit, on the 11th day of December, 1844, transferred and assigned in writing, the said writing in these words and figures, to the said plaintiff, viz: ‘ 1 hereby transfer to J. S. Copes, the above statement of James E. Matthews, auditor, for value received,' this 11th December, 1844, subject to the credit entered on the back, of $66.66|, which being my pay for the month of November, 1844, I have already drawn.
    [Signed,] ‘ James Wade.’ ”
    “And the said plaintiff avers, that then and there, on the faith and in consideration of the said writing, of the said defendant Matthews, and its transfer and delivery to him (the plaintiff,) he then and there advanced to the said James Wade, the sum of three hundred and ten dollars, to be paid him on the first days of January, February, March, April, May and June, 1845, in equal monthly instalments, as they severally felL due. By means whereof the said defendant became liable to pay him, the plaintiff, the said sum, as aforesaid, whenever thereafter requested, and being so liable, promised so to do, &c.”
    “ And for that, &c., the said defendant made another certain letter of credit in favor of the said James Wade, and delivered it to him, thereby authorizing any one to advance the said Wade the sum of eight hundred dollars, the amount of the salary of the said Wade, as the clerk of the said defendant, from the first day of November, 1844, to the first day of November, 1845 ; and by the said letter of authority, promised to retain the said Wade in office as his clerk, for the period aforesaid, and to pay over to the holder of the said letter, the said sum of eight hundred dollars, in monthly instalments, at the rate of sixty-six dollars and sixty-six and two-third cents per month, in treasury warrants. And the said James Wade to whom the said letter of credit, or authority was given, after-wards, to wit, on the 11th day of December, transferred in writing the same to the plaintiff, for value received, and then and there delivered it to the plaintiff; by means whereof the said defendant became liable to pay the plaintiff the sum of eight hundred dollars, &c.” The ordinary super se assumpsit and the breach that the defendant had not paid the money, concluded the declaration. The defendant demurred, and assigned for cause. 1. That the instrument given Wade, did not form any obligation in Wade’s favor against the defendant, apart from conditions to be by him performed and was in no event assignable. 2. That if defendant’s writing were a letter of credit, the declaration did not contain averments sufficient to impose liability on him. 3. The declaration was uncertain as to the amount demanded. 4. The declaration omits the proper averments as to the time, place, &c., and was in other respects informal.
    The court below sustained the demurrer, and the plaintiff sued out this writ of error.
    
      A. C. Baine, for plaintiff in error,
    contended,
    1. That there was no substantial defect in the declaration. He cited Thrasher v. Ely, 2 S. & M. 139, to show that Copes was not bound to give Matthews notice of the advance to Wade.
    2. That the undertaking on the part of Matthews was not a conditional one; but was a direct undertaking to pay the holder, and such as Matthews was fully empowered to make. Lawra-son v. Mason, 3 Cranch, 492.
    3. If Matthews had no authority, as auditor of public accounts, to make the contract sued on, he had the power to bind himself individually; and cannot now shield his private liability under his official cloak.
    4. It was not necessary to have alleged a value to the auditor’s warrants; the court is bound judicially to know that they are at par. A jury would have been authorized to find for plaintiff. Lewis v. Farish, 1 How. Miss. R. 547.
    
      Hutchinson, for defendant in error.
    1. The defendant did not bind himself absolutely. The engagement he gave Wade could not be construed to be an obligation to pay the holder, or that he would retain Wade in his office, whether he acted faithfully and honestly or not; whether the exigencies of the public services required it or not; whether he died or resigned. It clearly contemplated the discharge by Wade of his duties.
    2. But the declaration nowhere alleges that Wade discharged his duties, and thus became entitled to his salary; unless he did do so, he could not draw any salary, and the defendant could not pay any, which was all he undertook to do. This defect alone is fatal.
   Mr. Justice Clayton

delivered the opinion of the court.

This is an action of assumpsit, containing two counts. The first is on the following instrument: “ Mr. James Wade wishes to anticipate the amount of his salary from the 1st of November, 1844, to 1st November, 1845. Mr. Wade has discharged his duty faithfully as clerk in my office. I shall continue Mr. Wade in the office until my time expires, which is, as above stated, until 1st November, 1845, and will issue his pay monthly, as the law allows, and will pay over to the holder of this obligation at the rate of $800 per annum, which will be $66.66§ per month, in treasury warrants. Jackson, November 7, 1844. James E. Matthews, Auditor of Public Accounts.” The other count was upon the same instrument as a letter of credit. They both endeavor to fix an individual responsibility upon the defendant. There was a demurrer to the declaration, which was sustained in the court below.

The acts of public officers or agents in regard to the creation of a personal liability, stand on a very different footing from those of private agents. In the ordinary course of things, an agent contracting in behalf of the government, or of the public, is not to be presumed to have bound himself personally, nor is it to be presumed that the party dealing with him in his public character, means to rely on his individual responsibility. Mac beath v. Haldimand, 1 T. R. 172 ; Hodgson v. Dexter, 1 Cranch, 345 ; Story on Agency, 306. This is the general rule, but the presumption may be rebutted by proof or circumstances, which clearly establish an intention between the parties to the contract to create and rely upon a personal responsibility on the part of the public agent. Such officer mays waive his personal exemption and immunity, and become responsible, if such be the mutual intention and agreement. Story on Agency, 310. But to create such personal liability, the proof ought to be clear and full. Ib.

In the present case, there is nothing to show an intention upon the part of the defendant to charge himself personally. The duties to be performed by Wade were for the public, the payment to be made was in treasury warrants,” which the defendant had no right to issue, except in his official capacity. The whole instrument contemplates an official, not a personal responsibility. The state was bound to pay the salary of the clerk. This instrument was intended to enable him to anticipate his salary. If he failed to perform the services, there was no obligation to pay upon the part of the state. The assignee necessarily took this risk upon himself. The declaration nowhere avers the performance of the services. In the absence of such averment it shows no right of recovery.

Whether the defendant would be liable, in any other form of action, or any other state of case, we cannot now undertake to decide.

The judgment is affirmed.  