
    
      E. H. Miller vs. J. P. Ford, J. R. Ford, and Francis Green.
    A hoard of Commissioners of Roads is, sub modo, a corporation, and, on the removal of a member, his powers and liabilities are transferred to his successor: to an action, therefore, against-tlxe board, for breach of a contract, the persons who compose the board when the writ is issued must be made parties, and not the persons who composed it when the contract was made. .
    A plea in abatement must give the plaintiff a better writ.
    A committee, of a board of Commissioners of Roads; who made a contract with the plaintiff for rebuilding a bridge, were sued for breach of the contract: they pleaded in abatement that the contract was made with the defendants and sixteen other persons, naming them, who constituted the board at the time the contract was made: the writ had been issued after some of the persons named in the plea had'retired from the board, and others had been appointed in their place: Held that the plea was good; that it gave the plaintiff a better writ, inasmuch as it referred him to the board as the proper party to be sued, and it was his duty to take notice of the changes that had been made in the time that intervened between the .making of the contract and the suing out of the writ.
    The question on'the plea in abatement being whether the contract was made with, the committee alone, or with the board, and the written testimony not furnishing complete evidence of the agreement, held that the question was properly submitted to the jury as one of fact. See MiMer vs. Ford, (4 Strob. 213.)
    Respecting the liability of agents to third persons, the rule is very different, where the agents are public, from that which prevails where they are private: it must be very apparent that a public agent intended to bind himself personally, or he will not ba held liable. . ' •
    
      
      Before Frost, J., at Georgetown, Bpring Term, 1850.
    The report of his Honor, the presiding Judge, is as follows:
    “This was a new trial of an action of assumpsit upon a contract for building a bridge. The declaration contained a count on the special contract, and a count for work and labor. The defendants pleaded in abatement that the contract was made with defendants, jointly with sixteen other persons, named in the plea. These persons were members of the Board of Commissioners of Roads for the Parish of Prince George (Winyah) at the time the contract was made. The replication denied that the contract was made with the persons named in the plea, and issue was joined thereon. This issue was submitted to the jury.
    “The defendants, who were the actors in the plea in abatement, shewed by W. J. Howard, Clerk of the Board of Commissioners, that the persons named in the plea composed the Board during the year 1847. In December, 1847, a new Board was appointed by the Legislature, and some changes were made of the Commissioners, not necessary to this case to particularize. The writ in this case was sued out the 24th March, 1848. The minutes of the Board were offered in evidence, for the purpose of shewing that the contract was made by the defendants, by the authority and as a Committee of the Board of Commissioners. This evidence was objected to, but received. At a meeting, held January 11, 1847, the defendants, who had been appointed a committee to examine Mill-dam bridge, with a view to its repair, reported that it was inexpedient to repair it. A resolution was then adopted, by which the Committee appointed to inspect the bridge (the defendants,) were authorized to advertise for contracts for building the Mill-dam bridge, till the first Monday in February ensuing. In the Winyah Observer of the 27th January, 1847, appeared a notice, to this effect: “Advertisement.— Proposals will be received till the first of February, 1847, for rebuilding Mill-dam bridge, according to the specifications subjoined;” which was signed “J. P. Ford, J. R. Ford, and Francis Green, Committee.” A letter from the plaintiff, dated 3Qth January, 1847, and addressed to “ J. P. Ford, J. R. Ford, and Francis Green, Committee,” was produced in evidence. It contained a proposal for building the bridge, according to the published specifications, for $975. At a meeting of the Board, held February 11, 1847, “the Committee laid before the Board the following proposals” for building Mill-dam bridge. Several proposals are entered, together with that of the plaintiff. It was resolved that “E. H. Miller’s proposal be accepted.” It was further ordered “that the Committee authorized to receive proposals for rebuilding Mill-dam bridge, (the defendants,) be authorized to contract with E. H. Miller, agreeably to his proposal; provided he should give satisfactory security that the work should be done within the time that they might agree upon.” It was further ordered that the same Committee should be charged with the superintendence of the work, and the reception of the bridge when finished. The defendants also produced a letter from the plaintiff, dated 8th July, 1847, and addressed to Francis Green. It is therein stated that the bridge will be ready for inspection on the 20th instant, and mentions several causes of delay to its earlier completion, “of which you will inform the Commissioners.”
    “ The plaintiff produced a letter from Francis Green to E. H. Miller, dated the 17th March, 1847, in which Green informs the plaintiff that both Committees had met at his house, and were disappointed in not seeing him. Miller is notified that both Committees will meet again at Green’s house, on the 22d inst., and that he must attend with the bond, made and signed, in the penal sum of double the contract price; and is cautioned that if he fails “ we shall have to advertise for proposals.” The bond was offered in evidence — “Know all men by these presents, that we, E. H. Miller, W. F. Blakely, John F. D. Britton, and John B. Miller, are held and firmly bound unto the Committee on China Grove bridge, to wit: J. P. Ford, J. R. Ford, and F. Green, in the penal sum of $1950,” conditioned for the faithful performance of the work; and signed by the plaintiff and his sureties.
    “The attorney for the plaintiff contended that the case, made by the evidence, presented not a question of fact for the decision of the jury, but a question of law for the decision of the Court; and desired that the jury should be instructed that the legal effect and operation of the contract, shewn by the evidence, made the defendants personally liable to the plaintiff. It was argued that the case now made differed from that presented at the former trial. That then, complete written evidence of the contract had not been produced; but by the production now of the plaintiff’s letter of the 30th January, 1847, complete written evidence of all the terms of the contract was supplied. The construction of the contract, thus proved by written instruments, it was insisted, should be determined by the Court. The attorney for the plaintiff proposed to shew, by argument, that, according to the legal effect and operation of the contract, the defendants were personally liable. But that question was waived by the Court. It was held that the case made did not substantially differ from that presented on the former trial. It will be seen, by reference to the brief of the former trial, that the advertisement was produced for proposals to rebuild the bridge across Mill-dam Swamp, with specifications of the work; and that, in pursuance of this advertisement, the plaintiff sent in a tender to the Committee, undertaking to build the bridge, according to the published specifications, for f975, the amount sued for. His bid was accepted by the Committee, and for the performance of the work they took from the plaintiff a bond, which, in the former case, as in this, was produced in evidence. That bond was as complete acceptance of the contract, by the defendants, as the letter of the 30th January. The third ground of the plaintiff’s motion for a new trial, on the former appeal, was, that “ his Honor decided, as a ‘principle of law, that the Board, and not the Committee, were responsible; whereas, it is respectfully submitted that the case made upon the issue and the evidence presented a question of fact, and it should have been left to the jury to determine to whom the credit had been given.” The plaintiff succeeded in his motion for a new trial, on this ground alone; no opinion was expressed on the other grounds of appeal.
    “The jury were instructed that the subject for their inquiry was, to whom did the plaintiff give credit in the contract for the building of the bridge; did he contract with the defendants on their personal undertaking and liability, or with the Board of Commissioners, through the agency of the defendants 1 They were told that the judgment of the Court of Appeals, on the appeal made on the former trial of this case, should govern them, for the evidence produced did not materially differ from that produced on the former trial. They were told that the designation of the defendants as a “ Committee,” created an ambiguity (which they should determine according to the evidence,) whether the plaintiff contracted with them personally, and on their individual credit, or with the Board, and on its credit. The facts were brought to their attention as they affected this question, and they found a verdict for the defendants, on the issue submitted; which, in effect, decided that the plaintiff did not give credit to the defendants personally.”
    The plaintiff appealed, and now moved for a new trial, on the following grounds:
    1st. Because the contract given in evidence was a written contract, and the parties bound by it is a question of construction upon the terms of the writing itself, in which light the Court should have regarded it, and instructed the jury accordingly.
    2d. Because, by legal construction upon the terms of the contract, the defendants were personally bound, and the Court should have so instructed the jury.
    3d. Because the Court left it to the jury to say, upon all the circumstances of the case, to whom the credit had been given; whereas it is respectfully submitted that such direction is proper only in cases of unwritten contracts, but ought not to set at large the terms of a written agreement.
    4th. Because the Court permitted to be given in evidence the minutes of the Board of Commissioners of Roads, containing their proceedings respecting the appointment and powers of the defendants, their committee.
    5th. Because, if the Board of Commissioners were responsible upon the contract of their committee, the plea in abatement set forth the names of the members at the time of the contract, and not those who were members at the time of commencement of the suit.
    
      Wilkinson, for the motion.
    
      Munro, contra.
   Curia, per

Frost, J.

The plaintiff brought this action against the defendants to recover from them, in their private capacity, the amount contracted to be paid to the plaintiff for rebuilding a bridge, on the high road from Georgetown to Black river ferry. The defendants admit their liability, as contractors, but deny that they are chargeable alone, and in their private capacity; and accordingly they pleaded in abatement of the plaintiff’s action, that the contract to rebuild the bridge was made with the defendants and sixteen other persons, named in the plea, who, together with the defendants, were then Commissioners of the Roads for the parish of Prince George. The plaintiff, by his replication, denies that the contract was made with the persons named in the plea.

On this plea, if the issue be found for the defendant, the judgment is that the writ be quashed, (1 Chit. PI. 466 ; 1 Tidd Prac. 642.) The effect of the judgment is, that the action is defeated ; but with liberty to the plaintiff to begin another against the proper parties.

Issue was joined on the plaintiff’s replication, and a verdict found for the defendants. On the evidence submitted and the instructions of the Circuit Judge, the verdict, in effect, determines that the contract to build the bridge was made by the plaintiff with the Commissioners of the Roads, and on their credit, and not with the defendants, personally, and on their individual credit.

It is objected that judgment cannot be rendered on this verdict for the defendants, because the persons named in the plea constituted the Board of Commissioners at the time the contract was made ; and that if the Commissioners are officially liable, the action should be brought against those persons who composed the Board at the time the writ was sued out: and so the plea in abatement is bad, because it does not give the plaintiff a better writ.

It is required by the rules of pleading, that a plea in abatement must give the plaintiff a better writ; that is, the plea must so correct the plaintiff’s mistake, as to enable the plaintiff to avoid the same objection, in framing his new writ. (Ste. Plead. 431, App. note 75.)

It has not been directly decided that the persons who constituted the Board at the time an action may be brought, should be made defendants, though the decisions on collateral points, and intimations of the opinion of the Court, tend to that conclusion. It has been held that the Commissioners of Roads, though not a corporation proper, having no corporate seal, nor corporate name, or property, yet have certain corporate capacities which constitute them, sub modo, a corporation. They are public functionaries, appointed by law, and charged with the keeping of the public roads and bridges in repair. For the efficient execution of this important function of the government, they are invested with very ample powers. By the Act of 1825 it is declared that all Boards of Commissioners of the Roads, as then established by law, shall continue to have legal existence, until otherwise ordered by law. They possess a corporate organization, having perpetuity and succession of members, and, by law, are constituted a Board, with stated periods of meeting and a prescribed quorum for the transaction of business. They are also required to elect officers, to whom specific duties are assigned. To the extent of their duties, and the liabilities which may be incurred in the performance of them, the Commissioners have a corporate capacity. But they can only sue and he sued collectively, by their proper names and designation of office, (A. A. 1841, 11 Stat. 160.) Commissioners of Roads vs. Guerard, Commissioners of Roads vs. McPherson, (1 Spear, 215, 218.) They have power to assess the inhabitants of their respective districts and parishes for all necessary expenditures, and incur no personal liability for contracts and engagements made in their official capacity. It necessarily results from the permanent constitution of the Board of Commissioners, and the succession of members by which it is perpetuated, that the powers and liabilities which pertain to a member of the Board, on his removal from office, are transferred to his successor. If it were otherwise, by successive changes, all the power of the Commissioners in relation to the past, might be transferred from those in office to those who had resigned.

The actual Board could not sue for debts, penalties and damages which had accrued to their predecessors ; and the interests of the district, or parish, in any action affecting them, might be committed to the care of persons who had renounced all obligation to protect them. It is indispensable that the powers, rights and liabilities of the Commissioners should be represented by those who are actually in office, and that the incumbents, at the time when a suit is commenced, should be made parties to the action.

The plea in abatement sets out the names of the persons who were Commissioners when the contract was made. The defendants could not have pleaded otherwise, consistently with the fact. But the plea does give the plaintiff a better writ, when it refers the plaintiff to the Commissioners of the Roads, as the proper parties to the contract and to the action. The plaintiff must take notice of the changes, if any have been made, in the Board between the time the contract was made, and the time when the writ is sued out, and make the parties defendants accordingly.

The motion for a new trial cannot prevail. The evidence abundantly supports the verdict, which establishes that the plaintiff did not contract with the defendants personally, but with the Board. The plaintiff appealed from a former verdict against him, on the ground that the evidence presented an issue of fact, whether credit had been given to the defendants, or to the Board, which the Circuit Judge decided as a question of law ; and that the verdict was rendered in obedience to that instruction. On that ground alone, a new trial was granted. The evidence on the last trial does not differ from that given on the first trial, sd far as it can affect the question which was presented by the former appeal. The plaintiff having now the verdict of the jury against him, reverses his position, and contends that the evidence shews an agreement, in writing, the effect and obligation of which should be determined by the -Court; and that the verdict of the jury is inconsistent with the legal effect of the agreement.

If a complete agreement, in writing, between the plaintiff and the Commissioners of the Roads of the parish of Prince George had been shewn on the 'first trial, the case would not -have been sent back.- Neither in the advertised proposals for building the bridge, nor in the' offer of the plaintiff for ■ the contract, nor in his correspondence respecting it, nor in the bond which he gave for the execution of the contract, nor in the letter produced at the last trial, are the said Commissioners of the parish of Prince George named. Every part of the written evidence discloses only the names of the defendants, with the addition of Committee.” It is necessary. to make a complete contract, in writing, that the names of the contracting parties should be inserted. It was highly probable, from the case made on the first trial, that the plaintiff contracted with the. Commissioners;;, but that did not appear in writing. A new trial was grantedi that the jury might decide to whom credit was given.

If in the written and printed papers which shew the terms of the contract, there were inserted, after the names of the defendants, Committee of the Commissioners of the Roads, for the parish of Prince George,” the Court- on ■ the first appeal would have had no doubt that the defendants, personally, were not liable '; and that the plaintiff should have sued the Commissioners.

The verdict of the jury has now removed the uncertainty respecting the. parties with whom. the plaintiff contracted, and, supplies, in the written evidence of the contract, the Commissioners of the Roads, as the party contracting with the plaintiff.

The law, cited in the argument in support of the motion, related entirely to the liability of agents to third persons, in reference to private transactions. But a very different rule prevails respecting the liability of public agents. The reason for the distinction is, that it is not to be presumed, either that the public agent means to bind himself personally, or that the party dealing with him means to rely on his individual responsibility, in preference to that of the public. And, besides, great public inconvenience would result from a different doctrine, considering the various public functionaries the government must employ in its ordinary business and operations, and how difficult it would be to procure persons to serve in any public employment, especially such as are onerous and uncompensated, if they were held liable on all their official contracts. In Hodgson vs. Dexter, (1 Cra. 364,) Marshall, C. J., having decided that a public agent contracting for the use of government is not personally liable, even though the contract be under seal, declares that the intent of the officer to bind himself personally must be very apparent indeed, to induce such construction of the contract. McBeath vs. Haldimand, (1 T. R. 172,) is the leading case on this subject. It has been followed by many decisions in the English and American Courts, which may be found collected in the eleventh chapter of Story on Agency.

The motion is dismissed.

O’Neall, Evans, Withers and Whitner, JJ., concurred.

Motion dismissed.  