384, and authorities there cited. If there are not apt words to charge the agent, and the credit is not given to him, then he is liable only in an action ex delicto.

It is said that this leads or may lead in this action to the conclusion that no one is liable; for the town is not. This may be so. But we do not think, if it be so, that it affords us a sufficient ground for holding the defendant liable, unless his acts bring him within the principles we herein lay down. If the defendant had stipulated with Lent that he should not be personally liable, it is clear that, in the absence of fraud on his part, no personal liability would rest on him.

According to the authorities cited by the appellant's counsel, if he was chairman of the board of supervisors, the defendant was a public agent. The law raises a very strong presumption against any credit being given to a public agent, acting within the scope of his authority, and requires a clear intention on his part to charge himself, to make him personally liable. This presumption of the law is equivalent to an implied agreement that he shall not be liable while acting within his authority. If he acts in a case where he has no authority, and fully discloses to the party with whom he is acting his want of authority, or the want of authority is known to such party, and he does not exact the individual undertaking of the agent, we see not why the same presumption should not then be raised against the liability of the agent as when he was acting within the scope of his authority. Why should a public agent in such case be presumed to make himself personally liable, and trust to the government for remuneration, rather than a presumption be raised that the party with whom he is dealing was to trust the government? Both know the government is not bound; and if the party contracting with the agent desires him to be personally bound, it appears to us not unreasonable that he should so expressly stipulate.

The instruction was erroneous; because the defendant, if he acted as a public agent, was not ex necessitate liable by reason of transcending his authority under the circumstances of this case, either in an action ex contractu or ex delicto.

We think also the admissions Lent made before the assignment of his claim should have been received in evidence.

After a careful examination of the testimony, we do not find any evidence that Lent ever notified the defendant that he had, in pursuance of the alleged agreement, enlisted and credited himself to the town, or that the defendant, for at least six months after the enlistment, knew of such credit. Such notice should have been given within a reasonable time after the enlistment, or the defendant might have regarded the contract as broken on the part of Lent, and no longer binding on himself. We doubt whether, for the want of such notice, any cause of action whatever was proved against the defendant. But if there was sufficient testimony to go to the jury (which we do not decide), the defendant should have been permitted to show as a defense that he had been injured by want of notice of the credit to the town within a reasonable time.

By the Court.-Judgment of the county court reversed, and a venire de novo awarded.

WHERE AN AGENT MAY BE LIABLE. ACTION FOR MONEY HAD AND RECEIVED.

THIRTY-FIFTH SELECTED CASE.

JEFTS AND WIFE V. YORK.*

A promissory note, in the body of which A. promises to pay a certain sum, and signed "B., agent for A.," does not bind B. personally on the contract, although he had no legal authority from A. to give such note.

In this Commonwealth, a congregational church, or a church formed within the congregation by covenant and according to usage, to celebrate the Christian ordinances, and for ecclesiastical purposes, with deacons chosen by the members, is not a corporation, and cannot authorize an agent to bind them by a promissory note in their associate capacity. If the consideration of a note by an agent is money advanced to him for the use of his principal, under a mutual mistake of the legal capacity

* Reported in 10 Cush. (64 Mass.), 392 (1852).

of the principal to authorize the giving of such note by his agent, and the lender, finding that neither the principal nor the agent are legally bound upon the note, demands the money of the agent before it is paid over to his principal, he may recover it of the agent, in an action for money had and received.

ASSUMPSIT upon the money counts, with a specification of claim, under the count for money had and received, for one hundred dollars and interest, which the female plaintiff while sole, by the name of Betsey Tilton, advanced to the defendant, October 14, 1842.

At the trial in the court of common pleas, before MELLEN, J., the plaintiffs produced and relied upon a note, of the following tenor:

"$100.

"LOWELL, October 14, 1842.

"For value received, the pastor and deacons of the First Freewill Baptist Church in Lowell, in behalf of said church, promise to pay Betsey Tilton, or her order, the sum of one hundred dollars; to be paid in two years, if called for, by giving one month's notice, with interest annually.

"S. D. YORK, "Agent for the First Freewill Baptist Church in Lowell."

In addition to the note, the signature to which was admitted, the plaintiffs proved an oral admission by the defendant of his receipt of the money, and that he expected to pay the note, at a month's notice.

The defendant contended that he signed said note merely as agent of the said church, a religious association of individuals, or as agent of the pastor and deacons of said church, and that being duly authorized so to do, he was not personally liable on the note; and he offered evidence tending to show the votes of said church, directing him to give the note in suit. The particulars of this testimony, as also several other questions raised at the trial, did not become material to the final decision of the case. Upon the whole evidence, the presiding judge instructed the jury, among other things, that the note in suit was, in its legal construction, the note of the church, and that, as no authority had been shown in the

church to give such note, the defendant acted therein without legal authority; and that the defendant, if he received the money himself, would be liable under the count for money had and received, and the jury returned a verdict for the plaintiffs. To this ruling the defendant excepted.

SHAW, C. J.-We suppose this is the same case in which a new trial was formerly ordered, which is reported in 4 Cush., 371. The object of this suit is to charge the defendant personally, in consequence of his having received of the female plaintiff, whilst sole, the sum of $100, by way of gift, deposit or loan, for the Freewill Baptist Society, upon which he gave her a note or memorandum in writing, as stated in the report referred to. We say gift or loan, because, by the terms of the note, it was only to be paid, if called for.

The former decision only determined that, by the law of Massachusetts, contrary to the rule in some other States, a person, professing to act as agent for another party, but either in law or in fact having no authority to bind such party, he does not necessarily bind himself.

In the present case, it seems to have been assumed, and if it had not, it seems to us clear, as matter of law, that the church or the deacons of the church, had no authority to give a promissory note, or enter into an executory contract for the payment of money, binding upon themselves and their successors, in their corporate capacity. This appears to be the case of a regularly incorporated religious society, in its nature and constitution congregational, a church forined within the congregation, by covenant and according to usage, to celebrate the Christian ordinances, and for purposes purely ecclesiastical, with deacons chosen by the members. It has often been held in this Commonwealth, that such a church is not a corporation, and can neither contract nor sue in a corporate capacity. And although the deacons are vested by statute with limited corporate powers to take gifts and donations and hold property in succession, for the benefit of the church, yet we are not aware of any authority they have to issue promissory notes, to bind their successors or the church, or to enter into executory contracts, negotiations, or speculations, although

they may hope and expect that they will prove profitable to the church. Perhaps it may be thought that the court adopted a different rule, in regard to this same society, in the case of Townsend v. Freewill Baptist Society, 6 Cush., 279. But it will be found on examination, that the suit there was brought against the incorporated society, by the name of the Freewill Baptist Church, or, if in fact it was intended to charge the church proper, the plaintiffs had declared against them as a corporation, the defendant had not pleaded in abatement, or given the necessary notices to traverse and try the fact of their being a corporation, so that the suit proceeded against them as a corporation. We then are brought back to the question whether the agent is personally liable. The court are of opinion that where a person acting as agent borrows money for his principals, and gives their obligation for it, and it turns out that the principals were not of legal capacity to make such contract, and of course could confer no such power on another, the agent is not personally liable on the contract, as his contract. This in effect was before decided in the same suit between these parties. 4 Cush., 371; Abbey v. Chase, 6 Cush., 54.

But if in fact he was not so authorized, but under a belief that he was, and acted on such belief, and the party advancing the money did not know that he was not authorized, the agent would be liable in an action of the case, to an amount in damages equal to the sum advanced. If one falsely represents that he has an authority, by which another, relying on the representation, is misled, he is liable; and by acting as agent for another, when he is not, though he thinks he is, he tacitly and impliedly represents himself authorized without knowing the fact to be true, it is in the nature of a false warranty, and he is liable. But in both cases his liability is founded on the ground of deceit, and the remedy is by action of tort. Smout v. Ilberry, 10 Mees. & Welsb., 1; Jenkins v. Hutchinson, 13 Ad. & El., N. s., 744.

But if the defect of authority arises from a want of legal capacity, and if the parties act under a mutual mistake of the law, and are both equally well informed in regard to the facts, so that the lender is not misled by any word or act of the