The opinion of the Court was delivered by

In this case I do not intend to follow the counsel through the immense array of authorities with which they presented their views to the Court. Our labors on the circuit and in this Court' are sufficiently onerous, without undertaking to write essays on pleading, and speculative points. I concur fully with the Judge below in his ruling on the two first grounds, and I think the third ground is also fatal to the plaintiff’s claim.

*5001. It is supposed that the former opinion, 9 Bich. 474, settled that the pleadings did not charge the defendants in their public character. But I am sure that is a mistake : the only point then before the Court was, whether my decision quashing the proceeding was proper. The Court thought it was not, and that the case must await its future chances, on a demurrer, or on a motion for nonsuit, after the facts had been fully brought out. That has been now reached, and we are now to decide, first, are the defendants charged in their public character? It seems to me if words have any meaning, such is the charge. They are sued as “ the Chairman and Commissioners of the New State Capitol,” and so treated throughout.' The bill of particulars which points out the proof intended to be adduced, tells the defendants, the plaintiff charges you with various particulars in your public character, as agents for the State. But all this is nothing says the plaintiff; what I have said about your public character is surplusage — I will strike it out. The rule is, if the allegation need not be proved to entitle the plaintiff to recover, it may be struck out as surplusage. Let us test this case in that way: strike out everything touching the public character of the defendants and the case then stands as a claim by plaintiff rendered Messrs. Bull, Manning, Bedon and others as private gentlemen. The first piece of evidence may be the plan for the new State House. Can that be a charge against them ? it is work done for the State, procured to be done by the plaintiff at the instance of the defendants, and with a full knowledge, on the part of the plaintiff that they were acting for the State. It would be absurd to say that could be a charge against them individually. When the public character of the defendants is taken from the case, the plaintiff cannot move at all, for he has no evidence to sustain such a case, ^

Again it is supposed, that they can charge the defendants under an express contract made by them, and which must make them individually liable. To say nothing about the *501necessity of declaring on that express contract, and the waiver of tbeir public cbaracter, let us loolc to the proof adduced, the resolution of the 21st October, 1858. It is strange how ingenious minds may be misled. That resolution is a clear declaration that the plaintiff had his appointment from, and under the board, that is, the Commissioners of the New State Capitol; he is told that he bears the same relation to them, that he would to a private individual. That means, that he is to them responsible as he would have been if he had been employed by them as private individuals. What a monstrous perversion of the sense of words, to talk about that as a personal private contract on the part of the Commissioners !

It is next supposed that these defendants may be charged on this declaration, on account of acting outside of their authority. It is surely enough to say there is no proof of any sirch thing. Their beginning and progress about the work was reported annually to the General Assembly, and they approved of the same. Ratification confirms all which has gone before, and it is the same as if authorized' before being done. But I do not think this proceeding could ever have charged them for any such thing. It would have been good pleading to have set out in an action on the case their public character, and then that they had exceeded their authority in inducing the plaintiff to do the work alleged and thereby he was injured.

If the defendants be regarded as a quasi corporation (which I do not think they are, they are merely agents acting for the State, like a committee from session to session of the General Assembly,) then that admits their public character, and there can be no recovery unless there be something beyond their contract. Now it may be when a quasi corporation has a fund to pay to the plaintiff, and will not pay it over, that by setting out that fact in the declaration there may be a re*502covery, but here there is no such matter set out. In any point of view on the first ground there can be no recovery.

2. On the second ground there is no proof whatever of a joint contract outside of the public character of the defendants. There is nothing like an assent by all to be bound except in the votes of a public body. So, too, many of the defendants came in at different times; and Messrs. Manning, Read, and McKay had nothing to do with his employment in October, 1851. Indeed Mr. McOay had no other agency in relation to the plaintiff than to move to dismiss him. Surely the absence of all proof of a joint contract is enough to end the pretence of personal liability.

8. The whole proof shows that the defendants contracted as agents of the State, and it is perfectly clear that they can not be made personally liable on such a contract. Indeed the law protects them entirely from suit. For the purposes of this case they are in place of the State. If this unfortunate plaintiff has any just claim let him apply to the General Assembly and he will have justice done to him. For never, in forty years, have I known a just claim utterly repudiated by the State. The General Assembly may render tardy justice, but as soon as they are convinced of the right, they have uniformly made amends.

The motion to set aide the nonsuit is dismissed.

concurring, said: — I think the defendants are sued as individuals, and that any judgment rendered against them on these pleadings must necessarily have been against them personally. If the intention had been to charge them officially, the action should have been against “The *503Chairman and Commissioners of the New State Capitol,” the body which acted by the will of a majority — a quasi corporation aggregate.

The pleadings, I think, are unobjectionable. The plaintiff alleges that the defendants promised, — they plead the general issue — under that plea it appears, by evidence, that the promises which were made, were made by the defendants as public agents, in other words, by the quasi corporation; the plaintiff may well rebut this, by evidence of anything which shows that the promises were binding on the defendants personally. It was no more necessary for the plaintiff to allege in his declaration the rebutting evidence, than for him to allege the evidence by which the making of the promise was to be shown.

I can see no evidence to show the concurrence of Mr. McCay in any joint promise to the plaintiff, made by the individuals, even if all the others 'became personally liable: and the joinder of too many defendants in an action upon contract is ground for nonsuit. Whatever Mr. McCay did was done in 1854, and was done by him as member of a board, not as an individual, and in exercise of the rightful power of the board to dismiss the plaintiff, not in confirmation of any unofficial agreement, which other members may have previously made with the plaintiff. A resolution, which in form seemed to have been adopted by the board, if it was such as to fix personal liability upon members, would avail only against the individuals who assented to it, and not against all the members of the aggregate body.

I have sought in vain for any evidence which would charge any of these defendants personally. The employment by some of them, in 1851, of an architect to prepare such a plan of a fire-proof building as would render the building fit to become part of a State House, was within the scope of their original appointment, and was approved by the Legislature. The resolution of October, 1858, instead of *504acknowledging or establishing a personal liability, shows that the contract of plaintiff was with the board, and not with private individuals, and merely asserts the authority of the board and its chairman, over him. The retention of his papers, even if admitted to be tortious, gives no action of assumpsit, against these individuals, for the advantage of it, if any, went not to individuals, but to the State for which they were acting. The appropriations which placed money at the disposal of the board, were not appropriations for the plaintiff, but for the work; and in the disbursement of them, a discretion was' entrusted to public agents, which a Court cannot control.

I concur -in dismissing the motion, but not in all the reasons which have been given for doing so. •

Motion dismissed.