The opinion of the court was delivered by

The defendant was collector of the customs for the district of Vermont, and the plaintiff a deputy, who served in that capacity under the defendant; and this suit is brought to recover for those services. The suit is founded upon an express undertaking of the defendant to be personally responsible to the plaintiff for his services. And so far as the testimony had any legal tendency to establish that fact, or was proper for the consideration of the jury in passing upon the question, in connection with the previous request of the defendant to the plaintiff to perform the service, and the subsequent repeated promises of the defendant to pay for the same, we do not see why it was not properly received and submitted to the jury. To such use, only, was this testimony restricted by the county court in their instructions to the jury. The testimony had a tendency to account for the promises subsequently made by the defendant to the attorney of the plaintiff, as indicating how the parties originally understood the contract.

The defendant insisted, that the plaintiff could not recover without proof of an express promise on the part of the defendant, and that it was necessary, that the plaintiff should deliver to the defendant a proper voucher, enabling him to charge the amount in his account with the government, before he was entitled to recover. The case shows, that the plaintiff had furnished his attorney such a voucher, of which the defendant was informed by the attorney, and *87that he could have it on payment of the claim. This, we think, was all the plaintiff was bound to do. The court did not instruct the jury upon this point in the terms insisted by the defendant, but did instruct them, “ that if they found the services were performed by the plaintiff at the request of the defendant, under an expectation, at that time, that he was to look to the defendant personally for his pay, and that the defendant, on his part, at the same time, expected to be personally responsible for the payment of the same, this created such a privity between them, as to render the defendant personally responsible; and that the course of business at Washington and the after promises of the defendant to pay the claim were only to be used as evidence tending to prove, how the parties understood it; and that, unless they did find, from all the testimony bearing upon the point, that such was the understanding of the parties, they would return their verdict for the defendant.” This was, substantially, an instruction to the jury, that they must find, from the evidence, an original personal undertaking of the defendant, at the time of the request, to pay for the services, to warrant a writ against him. Under this charge the jury must have found, that it was the understanding of both parties) at the time the request was made and the service rendered, that the defendant should be personally responsible to the plaintiff for the same. This was clearly all that was necessary, to entitle the plaintiff to recover. In the judgment of the court the charge was proper and all the case required.

The defendant moved in arrest of judgment for the insufficiency of the declaration, which motion was overruled by the court below. This question does not seem to have been much relied upon at the argument, and we are unable to discover any such insufficiency in the declaration, as to the warrant an arrest of the judgment.

The motion in arrest was properly overruled, and the judgment of the county court is affirmed.