Merolla only in his representative character as consul, and that the appellee must resort for their payment to the vice-consulate, or, in effect, to the Italian government alone; and, further, that the contracts are under seal, and must be declared on as specialties. This attachment does not proceed upon fraud practised by De Merolla in procuring the money lent on the notes, but on the notes themselves as produced. There must be an agreement between the cause of action as set out in the affidavit and vouchers, and the averments of the short-note or declaration; otherwise the attachment will not be supported; Browning v. Pasyuny, 35 Md. 204; Dellone v. Hull, 47 Id. 42.

If it be apparent from the face of the instruments that the debt was not contracted by De Merolla individually, but was on behalf of his government alone, the variance will be fatal, without reference to whether the instruments are sealed or not.

It is well established that the rules relating to private agents and their principals are not applicable to public officers. Story in his work on Agency, sect. 303, having previously discussed the general law of agency, including that relating to agents or factors of foreign principals, says: "Hitherto we have been considering the personal liability of agents on contracts with third parties in cases of mere private agency. But a very different rule prevails in general in regard to public agents; for in the ordinary course of things an agent, contracting in behalf of the government or of the public, is not personally bound by such a contract, even though he would be by the terms of the contract were the agency one of a private nature. The reason of the distinction is that it is not to be presumed that the public agent means to bind himself personally in acting as a functionary of the government, or that the party dealing with him in his public character means to rely on his individual responsibility. On the contrary, the natural presumption in such cases is that the contract was made on the credit and responsibility of the government itself as possessing an entire ability to fulfil all its contracts far beyond that of any private man; and that it is ready to fulfil them not only with good faith, but with punctilious promptitude and in a spirit of liberal courtesy. Great public inconvenience would result from a different doctrine, considering the various public functionaries the government must employ in order to transact its ordinary business and operations; and many persons would be deterred from accepting important offices of trust

under the government if they were held personally liable upon all their official contracts." And in the following section adds: "This principle not only applies to simple contracts, both parol and written, but also to instruments under seal which are executed by agents of the government in their own names and purporting to be made by them on behalf of the government; for the like presumption prevails in such cases that the parties contract, not personally, but merely officially within the sphere of their appropriate duties." Cited in the margin, among others, are the leading cases on this subject of Hodgson v. Dexter, 1 Cranch 345; Macheath v. Holdiment, 17 Conn. 172; Unvin v. Wolsely, Id. 674.

Kent, in his Commentaries, Vol. II., sec. 633, affirms the same doctrine, as indeed do all the text books, and adds: "But the agent, in behalf of the public, may still bind himself by an express engagement, and the distinction terminates in a question of evidence. The inquiry in all cases is, to whom was the credit in the contemplation of the parties intended to be given?"

This question, where the contract is in writing, must be primarily determined by recourse to the instrument itself.

BIGELOW, C. J., in Bray v. Kettell et al., 1 Allen 83, in construing the contract of an agent for a foreign principal, thus succinctly announces the doctrine to be: "But even in such a case the fact that the principal is resident in a foreign country is only one circumstance entering into the question of credit, and is liable to be controlled by other facts, so in the case of a written contract; it depends on the intention of the parties. But this, as in all other cases of written instruments, must be determined mainly by the terms of the contract. There may be cases where the language of the contract is ambiguous, and it is doubtful to whom the parties intended to give credit, in which the circumstance that the principal is resident abroad may be taken into consideration in determining the question of the liability of the agent. But when the terms of the contract are clear and unambiguous, it must be deemed the final repository of the intention of the parties, and its construction and legal effect cannot be varied or changed by reference to facts or circumstances affecting the convenience of the parties or the reasonableness of the contract into which they have entered."

Upon an examination of the evidences of debt produced in this case, it seems clear beyond question that De Merolla executed them, not in his individual or private, but in his consular or official

capacity. They are dated at the consulate office, the sum borrowed is explicitly stated to be "for the use of this Vice-Consulate of Italy," not his own use, and the obligation to repay the money is not expressed in the usual form of a personal undertaking. "I promise to pay," but the terms employed are," to be returned," &c. Superadded to all this there is attached, not his private seal, but the public seal or stamp of the Vice-Consulate itself. This seal could perform no private office, but can be explained only as an attestation to an i.strument of a public nature; whether to give it the legal character of a specialty or furnish evidence of its genuineness is immaterial.

Many good reasons suggest themselves why the lender of the money would have preferred to give credit to the Vice-Consulate or the government of Italy, instead of accepting, without security, the merely personal obligation of De Merolla; and it is the only reasonable and natural construction of the terms of the instruments that such was their intention and effect.

i

I. Private Agents.—It is a general rule that one who signs his name to a contract, no matter what other words he adds, enters into a personal contract on which he may personally sue and be sued. The added words, such as president," "committee," "trustee," rector." &c., have no legal significance; their omission constitutes no variance, and they in no way affect the rights and liabilities of the contracting parties. Thus, a note signed "S. J. Tilden, Vestryman, Grace Church," is S. J. Tilden's personal note: Tilden v. Barnard, 43 Mich. 376, 38 Am. Rep. 197. And we find the same decided of added words, such as 6. president and directors of A. Railroad :” Pack v. White, 78 Kỵ. 243; Rendell v. Harriman, 75 Me. 497; 46 Am. Rep. 421; Buffalo v. Bitter, 87 N. Y. 250; Trustees of B. Lodge." McClellan v. Robe, 93 Ind. 298; 117liams v. Lapingette, 83 Id. 237; “Trustees of C. Twp.," Revolving Se. v. Tuttle, 61 Iowa 423; 47 Am. Rep. 816; Wing v. Glick, 56 Iowa 473; 37 Am. Rep. 142 note; American v. Stratton, 59 Iowa 696; Trustees of D. Church," Dayton

66

v. Warne, 43 N. J. L. 659; Hayes v. Brubaker, 65 Ind. 27; "building committee," Anderson v. Pearce, 36 Ark. 293; 38 Am. Rep. 39; 66 representing B.," Grau v. Me Vicker, 8 Biss. C. Ct. 13; agent," Zigler v. Wells, 28 Cal. 263: Faw v. Meals, 65 Ga. 711; Graham v. Fahnestock, 5 Gill 215; Stewart v. Katz, 30 Md. 334; Buffum v. Chadwick, 8 Mass. 103; Pratt v. Beaupre, 13 Minn. 187; Bank v. Cook, 38 Ohio St. 442; Bryson v. Lucas, 84 N. C. 680; 37 Am. Rep. 634; "cashier," Fairfield v. Adams, 16 Pick. 382; "curator," Lipscomb's Ward, 2 Tex. 277; "guardian," Carskadden v. McGhee, 7 W. & S. 140; "trader," Clark v. Lowe, 15 Mass. 476; " 'tailor," Janes v. Whitebread, 11 Com. B. 406; "treasurer," Ross v. Brown, 74 Me. 352; "colonel," Me Williams v. Willis, 1 Wash. (Va.) 199; overseer of the poor," Bay v. Cook, 2 Zab. (N. J.) 343; "survivor," Vandenhorst v. Storrs, 3 Conn. 203, 207; Parsons v. Boyd, 20 Ala. 112, 116; "& Co.," McCool v. McClune, Harp. S. C. 486 Truscott v. King, 6 Barb. 346; "trustee," Gill v. Carmine, 55

Supreme Court of Wisconsin.

COMSTOCK r. BECHTEL.

An insolvent debtor who sells property which is subject to levy on execution, and with the proceeds immediately purchases exempt property, will be presumed to have done so with intent to hinder, delay, or defraud his creditors; but the property so purchased does not, for that reason, cease to be exempt. The only remedy of the creditors is by attacking the sale of the non-exempt property.

APPEAL from Circuit Court, Dane county.

Replevin for two horses, one harness, one sleigh, one wagon, and two cows, alleged to have been levied upon and seized by the defendant, who was the sheriff of Dane county, by virtue of a certain attachment, and an execution duly issued by the circuit court of that county against the property of the plaintiff, and in the hands of such sheriff for service. The plaintiff claims that the property in controversy is exempt from seizure by virtue of such writs.

In his answer the defendant justifies the seizure of the property by virtue of the aforesaid writs, and alleges that the same is not exempt from being so seized, because the plaintiff was one of a firm hopelessly insolvent, against which judgments for large amounts had been rendered, and others were about to be entered in actions then pending, and that plaintiff, for the purpose of defrauding the creditors of such insolvent firm, sold certain notes and securities owned by him, and not exempt, and with the proceeds thereof purchase the property so seized with the intention of holding it as exempt property.

The cause was tried by the court without a jury. The court found that the defendant was sheriff of Dane county, and as such, by virtue of valid process, seized the property claimed on February 1st 1884, and that at the time of such seizure the same was all the personal property which the plaintiff owned: also that the value of the property was $685, and that the amount for which such writs were issued exceeded that sum. The more material findings of fact are as follows: "(5) That on the thirty-first day of December the said plaintiff was the owner of, and held in his own name, a note secured by mortgage upon real estate of the value of twelve hundred dollars ($1200), and one note of the value of one hundred dollars ($100). (6) That at this time the said plaintiff was heavily indebted and wholly insolvent; that said plaintiff, although repeatedly requested by his creditors to pay his indebtedness, immediately