Selden.(1) The principle is that he is not liable upon official contracts; but still the question is open whether the engagement was official or personal. A public officer or agent, contracting in his official character, is not personally liable although he covenant and seal in his own name; and wherever a contract is made by such a person, on account of the public or government, within his official duty and power, it will be presumed that it is made in official capacity, and that the engagement of the public or government only is intended to be given, unless a contrary intention be very apparent ;(2) and the rule is similar as to contracts not under seal ;(3) but if the engagement of the agent was meant to be personal, and not official, and credit was given to him individually and not to the government, he will be liable, both where the contract is under seal and where it is not under seal; and whether the engagement is personal or official must depend on the intention as inferred from the terms and circumstances of the transaction.(4)

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[By a public agent" is meant one who is the agent of the State immediately, or of a county, town, society, school, or other district, or one who derives his public and official character from the general law and the election of the people of a given district.(5)]

With regard to the liability of an agent, in an action on the case, when he has executed a deed without authority, it is settled that to sustain such an action, there must be fraud in the agent; if an agent discloses his authority, and the parties are misled by a common misapprehension of the law as to the extent of that agency, or act in common ignorance of some fact by which the powers of the agent have been terminated, an action on the case will not lie ;(6) but if an agent corruptly represents that he has authority, knowing that he has not, he will be guilty of fraud;(7) and assuming to act as agent, without having authority, is prima facie fraudulent, and if the plaintiff shows such as

(1) 2 Wallace, 181.

(2) Unwin v. Wolseley, 1 Term, 674; Hodgson v. Dexter, 1 Cranch, 345; Dawes v. Jackson, 9 Massachusetts, 490; dictum in Sumner, Adm'r, v. Williams et al., 8 Id. 162, 212; Nichols v. Moody, 22 Barbour, 615.

(3) Macbeath v. Haldimand, 1 Term, 172; Parks v. Ross, 11 Howard's S. Ct. 362, 374; Brown v. Austin, 1 Massachusetts, 208; Walker v. Swartwout, 12 Johnson, 444; Olney v. Wickes, 18 Id. 122; Fox v. Drake, 8 Cowen, 191; Osborne v. Kerr, 12 Wendell, 179; Adams v. Whittlesey, 3 Connecticut, 560; Perry v. Hyde, 10 Id. 330; Syme v. Butler, Ex'r, 1 Call, 105; Brown v. Hatton, 9 Iredell, 319; Tutt v. Lewis's Ex'rs, 3 Cal. 253; Tucker v. The Justices of Iredell Co., 13 Id. 435; Enloe v. Hall, 1 Humphreys, 303; Ghent v. Adams, 2 Kelly, 214.

(4) Powell v. Finch, 5 Yerger, 446; Sheffield v. Watson, 3 Caines, 69; Gill v. Brown, 12 Johnson, 385; Swift v. Hopkins, 13 Id. 313; King v. Butler, 15 Id. 281; Rathbon v. Budlong, Id. 1, 2.

(5) Ogden v. Raymond, 22 Connecticut, 383; and see Tutt v. Hobbs, 17 Missouri, 459. (6) Jenkins v. Atkins, 1 Humphreys, 294, 299.

(7) Delius et al. v. Cawthorn, 2 Devereux, 90.

sumption of agency, the onus probandi to rebut the presumption is on the defendant.(1)

To render a deed regularly executed by an agent, the deed of his principal, the authority to execute must be under seal; (2) unless the execution by the *agent be in the presence of the principal ;(3) how. [*611 ever, if executed without authority, it may be ratified as the deed of the principal, by instrument under seał;(4) but as a previous parol authority would be insufficient, so a subsequent ratification of the deed by parol or by acts in pais, not amounting to redelivery, will not give it validity as the deed of the principal ;(5) but a parol acknowledgment by the principal that the agent had a legal authority to execute the deed for him, would be admissible evidence of such authority, after notice to produce the original power of attorney.(6) But when it is said that acts in pais will not ratify a deed executed without authority, it must be un-derstood, perhaps, of such acts as amount only to evidence of an intention to affirm, and not to such as operate by estoppel (see supra). But where the act done by the agent would be good without seal, and there is a parol authority or ratification, the act will be valid. In Cooper v. Rankin, 5 Binney, 613, where an attorney, without authority, under seal, executed a release, it was held that though the instrument could not operate as a release, yet it might as a simple contract, if it was on sufficient consideration, and the agent had authority to make such a contract.(7) And, in other cases, it has been held, that where a deed is executed by an agent without authority under seal, the agreement evidenced by the deed may operate as a simple contract, if ratified in a way to give validity to a simple contract, though such ratification could not set up the deed.(8) In Hunter v. Parker, 7 Meeson & Welsby, 322, an auctioneer executed, without authority, a deed of transfer of a ship, in

(1) Clark v. Foster, 8 Vermont, 98; see also Roberts v. Button et al., 14 Id. 195, 202. (2) Evans v. Wells, 22 Wendell, 325, 334; Delius et al. v. Cawthorn; Gordon v. Bulkeley, 14 Sergeant & Rawle, 331; Maus v. Worthing, 3 Scammon, 26; McMurtry & Peebles v. Frank, 4 Monroe, 39, 41; Mitchell's & Davis's Adm'rs v. Sproul, 5 J. J. Marshall, 264, 267; Rhode v. Louthian, 8 Blackford, 413; Cocke v. Campbell & Smith, 13 Alabama, 286, 258; The Heirs of Piatt and others v. The Heirs of McCullough, 1 McLean, 69, 82. (3) Kime v. Brooks, 9 Iredell, 218.

(4) Milliken et als. v. Coombs et als., 1 Greenleaf, 343.

(5) Hanford v. McNair, 9 Wendell, 54; Wells v. Evans, 20 Id. 251, 258; Stetson v. Patton et al.; Boyd v. Dobson, 5 Humphreys, 37; Smith et al. v. Dickinson, 6 Id. 261. (6) Blood v. Goodrich, 9 Wendell, 68. 77; S. C., 12 Id. 525; see Curtis v. Ingham, 2 Vermont, 287, 289; Despatch Line of Packets v. Bellamy Man. Co., 12 New Hampshire, 206, 231.

(7) See also Van Ostrand v. Reed, 1 Wendell, 424, 431; and Worrall v. Munn, 1 Selden, 239; see also, however, Baker v. Freeman, 35 Maine, 485, a case involving probably the point of pleading.

(8) Despatch Line of Packets v. Bellamy Man. Co., 12 New Hampshire, 206, 234; Hanford v. McNair, 9 Wendell, 54.

his own name, under his own seal, and this was afterwards ratified by the principal by parol. A statute of 3 & 4 Wm. IV. required the transfer to be by instrument in writing, and the instrument in this case was of such a kind as would have been sufficient if it had not been under seal; and the Court of Exchequer held that it was sufficient to pass the interest. "It is the deed of the autioneer," said Park, B., in delivering the judgment of the court, "but it also may operate, by the consent of the principal, as a written transfer from him, as it certainly would have done if there had been no seal to it; and in order to prevent the instru ment from failing in its effect, and ut res magis valeat quam pereat, we do not feel ourselves precluded from holding that it operates to transfer an interest. If the authority had been by deed to convey by deed, the instrument would have been clearly inoperative for that purpose; but the authority is by parol; and must be assumed to have been to convey in the form in which it was conveyed; and this we think may be supported." [To like effect, speaks Paige, Judge, in giving the opinion of the Court of Appeals of New York, in Worrall v. Munn, 1 Selden, 239, "It is," says he, "a maxim of the common law that an authority *to execute a deed or instrument under seal must be conferred *612] by an instrument of equal dignity and solemnity; that is, by one under seal. A disposition has been manifested by most of the American courts to relax its strictness, especially in its application to partnership and commercial transactions. I think the doctrine as it now prevails, may be stated as follows, viz.: if a conveyance or any act is required to be by deed, the authority of the attorney or agent to execute it must be conferred by deed, but if the instrument or act would be effectual without a seal, the addition of a seal will not render an authority under seal necessary, and if executed under a parol authority or subsequently ratified or adopted by parol, the instrument or act will be valid and binding on the principal. It is said that the rule as thus relaxed is confined in its application to transactions between partners. But it seems to me that a distinction between partners and other persons in the application of the rule as relaxed and qualified by recent decisions, stands upon no solid foundation of reason or principle."]

II. As to instruments not under seal.

The case of New England Marine Ins. Co. v. De Wolf, illustrates the distinction between sealed and unsealed instruments, and shows that the rule requiring the instrument to be executed, or signed, in the name of the principal, does not apply to instruments not under seal: and the same distinction is expressly stated in Andrews v. Estes et als., 2 Fairfield, 267. The cases in all the States, in regard to instruments not under seal, agree, that if the name of the principal appear in the instrument, and the intention, on the whole, be apparently to bind him, he will be the party bound, if the agent had authority, although the instrument.

be signed in the agent's name only.(1) "In an agreement not under seal," said the chancellor, in the late case of Townsend v. Hubbard, 4 Hill's N. Y. 351, 357 (and see Townsend v. Corning, 23 Wendell, 436, 440), "executed by an agent or attorney on behalf of his principal, and where the agent or attorney is duly authorized to make the agreement, it is sufficient, as a general rule, if it appears in any part of the instrument, that the understanding of the parties was that the principal, and not the agent or attorney, was the person to be bound for the fulfilment of the contract."(2) In South Carolina, in some earlier cases,(3) this was not admitted, and it had been decided, that a note in the form, "I promise," &c., signed "J. L. R. for I. I." bound the agent personally, and did not bind the principal; but all these are overruled in Robertson v. Pope, 1 Richardson, 501, and the distinction recognized between deeds and parol contracts, that in the former the sealing and delivery must be in the name of the principal, but in the latter it is enough if it appear, that the contract was intended to be made for the principal. In Kentucky, also, in the earlier cases, it had been decided,(4) that notes beginning, "I promise to pay," &c., and signed, " For A. B., C. D.," or "C. D. for A. B.," or "C. *D., agent for A.," bind the [*613 agent and not the principal; but these cases have been qualified to the extent of allowing parol evidence to show that the agent intended not to bind himself personally, but to execute the instrument or contract as the act of the principal.(5)

[However, the question is one of intention as evidenced by legal expression, and where all through the instrument, a lease-the contract was in the name of the agent "for or on behalf of" the principal-and rent was reserved to the agent "for the use of" the principal: and certain acts were not to be done except by consent in writing of the agent "on the part of" the principal; and other acts were to be done when the lessee should be called on by the agent "on the part of " the principal, and the contract was signed by the agent alone, it was held, properly, that the agent was liable.(5)

It will be seen, therefore, from the foregoing note, and from the one that follows, that a distinction exists in the forms of valid contracts, by (1) Lewis v. Nicholson, 18 Q. B. 503; see Farmers' and Mechanics' Bank v. Troy City Bank, 1 Douglass, 458, 467.

(2) See also Evans v. Wells, 22 Wendell, 325, 335, 340; and Pinckney v. Hagadorn, 1 Duer, 96.

(3) Fash v. Ross, 2 Hill's So. Car. 294; Taylor v. McLean, 1 McMullan, 352; Moore v. Cooper, 1 Spears, 87.

(4) MacBean v. Morrison, 1 Marshall, 545; Patterson, &c., v. Henry, 4 J. J. Marshall, 126; Parks v. S. and L. Turnpike Company, Id. 456.

(3) Owings v. Grubb's Administrator, 6 J. J. Marshall, 31; Webb v. Burke, 5 B. Monroe, 51; and are now perhaps to be regarded as quite overruled by Hunter's Adm'rs v. Miller's Ex'rs, 6 Id. 612, 623; and Wright, &c., v. Roberts, cited Id. 625.

(6) Tanner v. Christian, 4 Ellis & Blackburne, 82 E. C. L. 592.

an agent for a principal, when under seal, when in writing not under seal, and when verbal. A contract under seal, by an agent for a principal, is not binding on the principal, unless it profess to bind him, and be executed in his name, and as his deed: a written contract not under seal is binding on the principal, in whatever form made or executed, if the principal's name appear in it, and the intention to bind him be apparent, but not unless his name appear in it: a verbal contract is binding on the principal, if his name is disclosed, and the person making it contract as his agent, and on his behalf.

*614]

*OF THE LIABILITIES AND RIGHTS OF ACTION, UPON PAROL CONTRACTS MADE BY AN AGENT FOR A PRINCIPAL.

S. & J. RATHBON v. BUDLONG.

In the Supreme Court of New York.

JANUARY TERM, 1818.

[REPORTED FROM 15 JOHNSON, 1-3.]

An agent who makes a contract on behalf of his principal, whose name he discloses at the time, to the person with whom he contracts, is not personally liable.

There is no difference, in this respect, between an agent for government and for an individual.

THIS was an act of assumpsit on a promissory note, in the following words:

"Ninety days after date, I promise to pay S. & J. L. Rathbon, or order, $302, value received, for the Susquehanna Cotton and Woollen Manufacturing Company.

Albany, June 24, 1815.

SAMUEL BUDLONG,

Agent."

The defendant gave in evidence a bill of parcels, headed as follows:

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"The Susquehanna Cotton and Woollen Manufacturing Company, bought of S. & J. L. Rathbon," &c., at the bottom of which was the following receipt. Albany, June 24th, 1815. Received payment, by a note payable in ninety days, which, when paid, will be in full of the above." The purchase of the goods and giving the note, were