
    Joseph Bainbridge versus Thomas Downie.
    Where one engaged as surety for a seaman, who enlisted on board a vessel of the United States, that such seaman should repair on board the vessel, and proceed to sea therein, or, in default thereof, that the surety would be accountable for the wages advanced to the seaman, and the seaman deserted, it was held that no action lay against the surety in the name of the officer commanding the vessel, but the remedy was exclusively in the name of the United States.
    
    This was a special action of the case, in which the plaintiff alleges that he, on the 5th day of July, 1806, was chief officer and commander of gunboat No. 11, belonging to the United States, and on that day shipped and engaged to serve on board said gunboat, for her then next cruise, as seaman, one Matthias Bowers, and that the defendant, by his memorandum, in writing by him subscribed, became surety for the said Bowers, and thereby obliged himself, as such, that Bowers should repair on board the gunboat aforesaid in proper time, and proceed to sea, or, in default thereof, that the defendant would be accountable for the wages advanced to Bowers; that the plaintiff, relying upon * and trusting [ * 254 ] to the said suretiship of the defendant, advanced and paid to Bowers, as wages, the sum of 72 dollars; that Bowers did repair on board, but afterwards, on the 5th day of September following, while the gunboat was lying at anchor in the port of Boston, and before she had commenced her said cruise, or had proceeded to sea, according to the true intent of the said memorandum, he deserted her, and hath not since returned on board; and that the gunboat, afterwards, on the 1st day of October following, proceeded to sea without him ; — of all which the defendant has had notice, and thereby, and by force of the said memorandum, became liable, and, in consideration thereof, promised the plaintiff to pay him the said sum of 72 dollars, being the amount of the wages advanced.
    The action was tried upon the general issue, November term, 1808, and a verdict found for the defendant, subject to the opinion of the Court on the following case: —
    “ The plaintiff was commander of the gunboat numbered eleven, owned by and in the service of the United States. In July, 1806, the said vessel lying in Boston harbor, he, in that character, undertook to enlist inferior officers, seamen, and ordinary seamen, to serve on board the said vessel, and for this purpose he drew up a shipping paper of the following tenor: —
    “ ' We, who have subscribed our names to these presents in an appro priate column on this paper, being inferior officers, seamen, and ordinary seamen, engaged for the United States’ gunboat called. No. 11, at present commanded, by Lieutenant Joseph Bainbridge, do severally acknowledge hereby to have received, as advance wages, the sums of money placed opposite to our respective names in another column; and we, who have subscribed, our names as sureties, do hereby acknowledge that we are sureties for the several inferior officers, seamen, and ordinary seamen, so engaged as aforesaid, against whose name or names ours are written, that he or they shall repair on board in [ * 255 ] proper time, and. proceed to sea in the * gunboat aforesaid; or, in default thereof, that we will respectively ansiver, and be accountable for, the advance wages, so as aforesaid acknowledged, to be received by any inferior officer, seaman, or ordinary seaman, for whom we are respectively surety.’ ”
    On the 5th day of the same July, Matthias Bowers engaged on board the said gunboat, as a boatswain, and subscribed his name in the proper column [of the said shipping paper,] and against his name in the column of sureties the said Downie wrote his name. Thereupon the said Bowers went on board the said gunboat, and did his duty as boatswain on board for six weeks, when he deserted, and, in about a fortnight after, was apprehended, and again carried on board, by the orders of the plaintiff, who confined him on board for about six weeks more, when he was released from his confinement, and again deserted. About a fortnight after-wards, the said gunboat proceeded to sea without him. Before the commencement of this action, the said Downie had notice of both the desertions of the said Bowers, and, after the last desertion, the advance wages paid to Bowers were demanded of him, which he refused to pay.
    If the Court shall be of opinion that, on these facts, the plaintiff has maintained this action, the verdict is to be set aside, and a verdict entered for the plaintiff, with seventy-two dollars damages; otherwise the verdict is to stand, and judgment to be rendered accordingly.
    
      At the July adjournment of the last March term, the cause came on for argument.
    
      Blake for the plaintiff.
    The contract was express that the seamen should repair on board in proper time, and proceed to sea. This contract was broken, and there are no equitable considerations in the case which should induce a deduction from the sum forfeited. It would be a hardship upon seamen to be deprived of this humane provision, as they must be, if the responsibility of the surety extends no farther than merely to the seaman’s rendering himself on board in the first instance.
    * It was contended at the trial that, if the defendant [ * 256 ] was liable to an action in this case, it was to the United States he was liable, and not to the plaintiff. Now, the plaintiff was commander of this gunboat, he was authorized to enlist seamen, and he was answerable to the United States, either for Bowers’s service, or for the money he had advanced him. But, if this was a contract with the United States, still the plaintiff, as their agent, may maintain the action in his own name.  And if Bowers’s engagement was to the United States, the present defendant’s was with the plaintiff, that if the plaintiff would grant certain liberties to Bowers, and he should abuse them, the defendant would refund the money advanced.
    
      Paine, for the defendant,
    contended that the whole contract in this case was expressly made with the United States, — not even with the plaintiff as their agent; and if it had been, he insisted that lie could not maintain the action in his own name. The plaintiff shows no interest in the demand; it does not even appear that the money was paid by him. The seamen shipped in the service of the United States, and to them alone are they or their sureties answerable. But if this contract was made with the plaintiff, it was with him as an agent of the United States; and so the declaration states expressly. He cannot, then, support the action in his own name.  A recovery in this action will be no bar to a demand for the same money by the United States. If it is, then they will lose the benefit secured by law to them of a priority in cases of insolvency. But, admitting the contract to have been with the plaintiff, the facts show no breach of it. The defendant was responsible that Bowers should go on board, and proceed to sea. But this must have a reasonable construction. Bowers did go on board, and remained six weeks. Was the defendant to be held responsible for an indefinite length of time, until it should happen to suit the plaintiff’s convenience to quit the port ?
    [ * 257 ] * The action stood over for advisement until this term, when the opinion of the Court was delivered by
    
      
      
        Buller's N. P. 130, Gonzalez vs. Sladen. — 2 Esp. Rep. 493, Atkyns & Al. vs Amber. — 1 East's Rep. 135, Myrtle vs. Beaver. — Ibid. 579, Rice vs Chute. — 8 D. & E. 571, Banfill vs. Leigh.
      
    
    
      
       1 Cranch, 345, Hodgson vs. Dexter. — 1 Mass. Rep 208, Brown vs. Austin.
      
    
   Sewall, J.

Several questions have been argued in this case but it is not necessary to express a decision upon more than one of them, — that which goes to the form of the action, — as we are all of the opinion that this action, brought in the name of the officer, is not supported.

Public officers have been holden not liable for the contracts which they make in their public capacity, and in the course of their employment, for the public; and, upon this general principle, that in this agency they are merely servants, and not factors, who acquire an interest in their contracts for their principals. But, generally speaking, in the contracts of public agents, as they are not in fact, so they are not in name, the parties. The public faith is engaged, and the personal credit of the agent is neither stipulated nor relied on. The rule opposed to the liability of public officers is in effect the constructive operation of the contract itself, and is equally applicable in many cases of contracts made by private agents or servants for their employers or masters. No agent or servant is liable, who, with proper authority, or in the course of his employment, stipulates in behalf of his principal, without engaging himself personally.

This case is to be decided by the construction of the contract upon which the original action was brought. Bowers shipped as a seaman in the service of the United States: the duty more immediately assigned to him happened to be on board a vessel of the United States, then commanded by Lieutenant Bainbridge, the plaintiff. The defendant, Downie, became a surety for Bowers upon the articles of enlistment; but both engagements — that of Bowers and the collateral one of Downie, upon which this action was brought— are with the United States. They only are parties to the considerations, acknowledgments, and undertakings, specified in [ * 258 ] these contracts ; and not the plaintiff, the public * officer, or a servant, acting in the course of his employment, in the name of the United- States, and in their service. We are, therefore, all of us, of the opinion that the remedy upon these contracts must be exclusively in the name of the United States; and we may add that this decision seems consonant to the public convenience in cases of this kind.

Judgment according to the verdict 
      
       1 Cranch, 345.— 8 D. & E. 571.
     