Tucker v. Shorter , 17 Ga. 620 ( 1855 )

By the Court.

Starnes, J.

delivering the opinion.

[1.] It is conceded by the Counsel for the plaintiff in error, that if this contract were made with the defendants in error, as agents of the State, the latter are not personally liable. But it is insisted that they did not contract in this character, though holding themselves forth in the contract as commissioners for the improvement of the navigation of the Coosa river, by the Legislature appointed, because they represented also a fund raised by voluntary subscription of private citizens, and entrusted to them for the purpose of being applied to the im-' provement of the navigation of Coosa river. And as to this fund it is urged, they had the right to bind themselves personally.

All this may be true; but it is not properly set forth in this petition. It is there alleged, that “as commissioners,” &c. they contracted and covenanted, &c. This was their character as public agents, and they are not, by the declaration, charged as being liable, because having in possession a private fund, for the appropriation of which they are responsible. If ••the case had been so framed, and it had been alleged, that in consideration of this they had bound themselves personally, ■and the charge were sustained by proof, then a recovery against them individually, perhaps, might be put upon this .ground. But the declaration does not show this, and the Court below was right in dismissing it.