ranty, as it was the fact of having able warrantors to indemnify him in case of eviction that induced plaintiff' to enter into the contract.

S. Dana, for the defendants, contended that there had been a substantial performance of their obligation; that Parker was sole seised at the time he made the deed; and that it could never have been the intention of the parties that the two who had no interest in the lands should make a deed jointly with Parker.

The Court, DANA, C. J., SEDGWICK, SEWALL, and THACHER, JJ., were unanimously of opinion that the plea in bar was insufficient, on the ground that the warranty of one of the defendants, with a release of the other two, was not a performance of the covenant declared on.

BROWN v. AUSTIN.

[1 MASS, 208.]

LIABILITY OF PUBLIC AGENT ON CONTRACT.-When an agent is intrusted with the performance of a public duty, he cannot be held personally liable on any contract made by him in pursuance of such duty.

WRIT of error brought to reverse a judgment of the court of common pleas. The defendant in error, the original plaintiff in this suit, commenced an action of assumpsit against Brown before a justice of the peace, in which he declared that Brown was indebted to him in the sum of seventy-three cents, according to the account annexed, which sum the said Brown promised to pay; that at the special instance and request of Brown, Austin had traveled ten miles, and testified respecting the election of J. B. Varnum as a member of the house of representatives in the congress of the United States, which election was contested by Brown, before Nathan Cushing, Esq., one of the justices of the supreme judicial court of Massachusetts, who had been authorized by congress to take testimony respecting said election, and that Brown had promised to pay therefor what the plaintiff reasonably deserved; that he reasonably deserved seventy-three cents more.

The account referred to was as follows:

"Aaron Brown, Esq., to David Austin, Dr. 1796, September 12. To travel ten miles, and attendance one day as a witness in the cause of the contested election of Joseph Bradley

Varnum, Esq., the said Brown being agent for the petitioners in said contest, $0.73."

The general issue was pleaded, and upon the trial judgment was rendered that Austin should recover of Brown seventythree cents and costs.

From this judgment Brown appealed to the court of common pleas, where, protesting that he did not make the promise as alleged by Austin, he further pleaded that he had been appointed the agent of the committee of elections of the house of representatives to take depositions concerning the election of one J. B. Varnum to the house of representatives of the congress of the United States, which election many citizens had petitioned to have investigated, as being illegal, and that in pursuance of such power as agent had caused Austin to appear and give his testimony before the judge, which was the same travel and attendance mentioned in Austin's declarations.

To this plea Austin demurred, on the ground that it amounted to the general issue, which should have been pleaded instead of the plea in bar. The court adjudged the plea insufficient, and the cause was tried on the general issue; whereupon the jury found for the plaintiff, Austin, damages to the amount of seventythree cents and costs. A new trial was moved for and granted. Upon this second trial, the defendant, Brown, demurred to the evidence, but the court overruling the demurrer, and directing the cause to proceed upon the issue, the jury again returned a verdict for the plaintiff, Austin.

Brown then filed a bill of exceptions, stating that the court had permitted the plaintiff to give in evidence a certain paper attested by Hosmer, the sheriff, to prove that plaintiff had been duly summoned to appear before Nathan Cushing, the judge who took the depositions, to give evidence, as plaintiff had alleged, although defendant had objected that the proper evidence to prove that fact would have been a copy of the original summons certified by the judge, with a copy of the sheriff's return thereon.

Upon the writ of error brought to reverse the judgment of the court of common pleas, the following errors were assigned: 1. That the declaration is insufficient in law to maintain the action; 2. The same, in substance, as is stated in the bill of exceptions; 3. That the court upon the demurrer to the plea in bar, instead of deciding that the same was insufficient, as amounting to the general issue, ought to have ordered the same to be set aside; 4. That, as the defendant demurred to all the

evidence given in the trial, the plaintiff ought to have joined in demurrer; 5. That the matters given in evidence upon the trial were insufficient in law to maintain the issue on the part of the plaintiff, and ought not to have been left to the jury, but to have been so decided by the said court of common pleas; 6. The general error.

The defendant in error pleaded in nullo est erratum.

S. Dana, for the plaintiff in error, contended that from the declaration itself it appeared that Brown was merely an agent, and that if any action lay it ought to have been brought against the principal; that if this were not so, there was no evidence of an express promise by Brown, so as to charge him. That it was an incontrovertible rule of evidence that the best evidence which the nature of the case admits is to be produced, if possible, and that the best evidence of plaintiff's attendance before the judge who issued the summons would have been a certified copy of the original summons, with the sheriff's return. But it was contended that the great point in the case was, agent for the public is not liable to be sued upon contracts made by him in that capacity; and that Brown was such an agent was not denied.

that an

Bigelow, for the defendant in error, contended that the services were performed at Brown's request, and that was a sufficient consideration for a promise; that the fact of Brown's acting as an agent made no difference, after verdict against him. If there was no evidence of an express promise at the trial, the objection ought to have been taken then; it is too late now; that when the services were rendered there was no act of congress making the nation responsible for expenses incurred in cases like the present; and from this a strong presumption arises that the parties understood Brown would compensate defendant.

THACHER, J. I have had no doubt from the first opening of this case. It appears by the record that the plaintiff in error was acting as the agent of the public. The law is settled that any person acting in that capacity, who makes contracts for the public-contracts in which he has no interest or concern other than as one of the individuals composing the body politic-does not render himself personally liable. The cases cited by the counsel for the plaintiff in error are express to this point. I think, therefore, that the judgment ought to be reversed.

cern.

SEWALL, J. I give my opinion upon only one point in this case, that of the public agency of the plaintiff in error. It appears by the record that Brown, in this transaction, was acting as agent for the public, in a business of great national conWhenever a person acts as agent for the public, he is not personally liable for contracts made by him in that capacity, nor will it make any difference if the services, etc., as in the present case, were performed at the special instance and request of the person so acting as agent; for although, in common and ordinary cases, the law implies a promise and personal obligation as necessarily resulting from services performed on request, yet such implication never arises where it appears that the request was made by a public agent acting in a public concern. If the defendant in error has any claim, it is on the public; and it might have been, perhaps still may be, fairly presumed that the national legislature would provide for the payment of the witnesses summoned by the agent of the house of representatives.

SEDGWICK, J. It is, in my opinion, unnecessary to decide on the several errors assigned, because there is one conclusive on the merits of the controversy between the parties. But before I proceed to that, I would observe, that the court below was, in my opinion, manifestly wrong in admitting the evidence which they did of the existence and service of the warrant, by virtue of which, as it is said, the original plaintiff was summoned to appear before Judge Cushing. By that admission, the great and first principle of evidence, that the best evidence of which the nature of the case will admit, is to be required, was violated. No evidence was given that the warrant issued by Judge Cushing was lost or destroyed. It was therefore to be presumed that it was in existence, and if so, it certainly ought to have been produced. The security of all we hold dear in society renders it indispensable that the principle which has been stated should be adhered to, and never departed from. But if the judgment below should be reversed for this cause, the consequence would be that a venire facias de novo must be awarded. It is for this reason that the court have proceeded further in their consideration of the case.

The court is judicially informed that a number of the electors of the district for which Joseph B. Varnum, Esq., was returned as a representative to the house of representatives in congress, believing that he was not duly elected, had addressed the house, the constitutional and sole judges on that subject. The peti

tion was received and considered, and the house, believing that further evidence was necessary to enable them to form a judgment on the question-a question in which the whole nation was interested-a momentous concern, not of individuals only, but of the public-provided the means of obtaining evidence. A judge was authorized to take it, and the plaintiff in error was appointed the agent to transact the business. This, then, was the business of the nation, originating in an order of the constitutional organ, and necessary to the performance of a trust of the most important nature, not of partial or local concern, but of universal interest. And who shall defray the expense necessarily incident to this transaction? Shall Mr. Brown, who was merely the agent of the public? Reason and justice forbid it. There is no doubt but that he, by an express undertaking, in his private capacity, to pay the original plaintiff, might have made himself liable; and in that case he must, for remuneration, have looked to the government. But there has been no such undertaking, nothing of that kind in this case. It is to be observed that this was before there was any act of congress on the subject, and the question of the liability of the plaintiff in error must be decided from the nature of the thing. I fully approve of the principles which governed the cases cited by the counsel for the plaintiff in error, by the former of which it was determined that an officer appointed by the government, treating as agent for the public, is not liable to be sued upon contracts made by him in that capacity; and by the latter, that a servant of the public, contracting by deed, on account of government, is not personally answerable.

DANA, C. J. The question referred to the court by this record is whether an individual who undertakes to act as agent for the public is personally liable upon contracts made by him in that capacity, and upon his request. In this case the subject was of general, national concern; all were equally interested, and it was the duty of every individual to give information on the subject. It has been said that the plaintiff in error was one of the petitioners to the house of representatives. If that be true, it does not make it his private concern. If Mr. Brown and the other petitioners really believed that the return was illegal, and that sufficient evidence could be adduced to prove the fact, it was their duty to make the representation to the house, the constitutional and only judges of the right to the seat, that the subject might be investigated. This was done, and the house appointed Brown their agent for that purpose. Ought it not to