(b.) So, if the agency and the liability of the principal be known, an election to take the individual note of the agent will be regarded as an election to discharge the principal Paige t. Stone, 10 Met. R. 169. Green . Tanner, 8 Met. R. 411. Wkins z. Reed, 6 Greenleaf's R. 220.

And giving credit to the agent, in the contracting party's book, or otherwise treating him as principal under the like circumstances, will discharge the principal Addison 1. Gandassequi, 4 Taunt. 574.

It has been held, that where the agent gives a promissory note or bT of exchange, in his own came, and, it would seem, under circumstances which do not show an electing to take the exclusive credit of the agent, the principal cannot be sued on the security; and that parol evidence is not admissible to charge him. Stackpole r. Arnold, 11 Mass. R. 27. Taber r. Cannon, 8 Met. R. 456. Bradford Com. Ins. Co. r. Covell, 8 Met. R. 442. Fenly v. Stewart, 5 Sandf. S. C. R. 101. Dawson r. Cotton, 26 Ala. 591.

The right (says Lord Abinger) to sue the principal when disclosed, does not apply to bills of exchange, accepted or indorsed by the agent in his own name: for by the is. merchant, a chose in action is passed by indorsement, and each party who receives the bill is making a contract with the parties upon the face of it, and with no other party whatever. Beckhan v. Drake, 9 M. & W. 92.

Whether in Massachusetts, the principal will be chargeable in any form of action, seems not to have been decided. See Taber v. Cannon, supra. In New York, the principal, though not chargeable on the note, would be chargeable in another form of action, if be had received the benefit of the contract. Allen r. Coit, 6 Hill's R. 318. Minard . Mead, 7 Wend. B. 68. Bank of Rochester r. Monteath, 1 Denio's R. 402.

In Engiand, paroi evidence would probably be admissible to charge the principal, but not to discharge the agent. Higgins v. Senior, 8 M. & W. 834. Beckham r. Drake, 9 M. & W. 79. Jones v. Littledale, 6 Ad. & El. 486. 2 Smith's Ld. Cases, 225, 305. Contra, Fenly . Stewart, sup.

But where the act is done in the name of one partner, upon agreement, for the whole firm, all will be bound. 1 Denio R. 402, supra. Bank of South Carolina r. Case, 8 Barn & Cress. R. 427. Winship e. Bank of United States, 5 Pet. R. 529.

3. Where there is no responsible principal, a contracting party, though representing himself as an agent, will be personally liable. Eaton v. Bell, 5 Barn. & Aid. R. 34. Thacher v. Dinsmore, 5 Mass. R. 299. Childs v. Monins, 2 Brod. & Bing. 460. Story en Agency, § 280.

4. Where the agent acts for a principal residing in a foreign country. But on the question whether the agent is alone liable, the authorities are conflicting. See ante, p. [* 631], n. b.

III. Where both principal and agent are liable.

Subject to the exceptions mentioned above, where an agent, acting within his authority, contracts without naming his principal, the contracting party, on discovering the principal, may elect to charge either him or the agent. The converse of this rule is also well established, viz: that the principal may declare himself, and take advantage of his agent's contracts made without disclosing him. But if the state of accounts between the contracting parties have bona fide, in due course of dealing, been altered, the right of election is in such case lost. Sims v. Bond, 5 Barn. & Adol. 393. Paterson v. Gandessequi, 15 East, R. 62. Thomson v. Davenport, 9 Barn. & Cress. R. 78. Kymer v. Suwercropp, 1 Camp. R. 109. Pentz v. Stanton, 10 Wend. R. 271. Short. Spackman, 2 Barn. & Adol. 962. Taintor v. Prendergast, 3 Hill's N. Y. Rep. 72. Raymond . Crown, &c. 2 Met. R. 319. French v. Price, 24 Pick. R. 13.

IV. When neither principal nor agent are liable on the engagement.

Where the agent acts in good faith under an authority which he supposes good, and omits to state nothing which tends to discredit his powers, he is not liable, though his authority may have terminated or have been void. Smout v. Ilberry, 10 M. & W. 1. Jefts

v. York, 10 Cush. 392. In the three cases of the agent's liability mentioned supra, as laid down in Smout v. Ilbery, it seems that the liability of the agent would not be on the contract, but in case. Jenkins v. Hutchinson, 18 Q. B. 744. Lewis v. Nicholson, 12 Eng. L. & Eq. 430. Jefts v. York, 4 Cush. 371. 10 id. 392. Abbey v. Chase, 6 Cush. 54. Ogden v. Raymond, 22 Conn. 379. A different rule has obtained, in New York, the reasons and limitations of which are stated in Walker v. Bank of N. Y. 5 Seld. 582. See also Woods v. Dennett, 9 N. H. 55. Moor v. Wilson, 6 Fost. 332. So no one, it seems, is liable on the covenants of a deed which are in the name of the principal, but the deed is signed by the agent. Hopkins v. Mehaffy, 11 Serg. & R. 126. Whether there was a remedy in the latter case, in any form of action, was not decided. Wells. Evans, 20 Wend. R. 251. Clarke v. Courtney, 5 Pet. R. 319. Stetson v. Patten, 2 Greenleaf R. 358. Brockway v. Allen, 17 Wend. R. 40.

V. Public agents.

They stand on peculiar grounds. Acting for the state, there is, strictly speaking, no liability of the principal, as no action on behalf of the contracting party lies against a state or the United States.

If the agent act by public authority, and within the limits of his power, he does not render himself liable, though he contracts in his own name, and under seal. Unwin v. Wolseley, 1 Term, 674. Hodges v. Dexter, 1 Cranch R. 345. Olvey v. Wikes, 18 Johns. R. 122. Dawes v. Jackson, 9 Mass. R. 490. Fox v. Drake, 8 Cowen R. 191. Wiggins v. Hathaway, 6 Barb. S. C. Rep. 632.

If a public agent exceed his authority, he will be liable. Where a person, under protest, pays illegal duties, he may recover the money paid in an action against the collector. Elliott v. Swartwout, 10 Pet. R. 137. Bend v. Hoyt, 13 Pet. R. 263. Irving v. Wilson, 4 Tenn. R. 485. Clinton v. Strong, 9 Johns. R. 370. But the case of Cary v. Curtis, 3 How. U. S. 236, denies such liability in the collector, under the act of congress of March 3, 1839.

If the fact of public agency does not appear at the time of making the contract, Swift v. Hopkins, 13 Johns. R. 313, Belknap v. Reinhart, 2 Wend. R. 375, or if a public agent make an express promise, Gill v. Brown, 12 Johns. R. 385, or if by his conduct he prevents a remedy against government, Freeman v. Otis, 9 Mass. R. 272, a personal liability will be incurred.

And in general public agents themselves, and not government, are responsible for their negligences, wrongs, and omissions of duty. Story on Agency, §§ 319-322, and notes, where the authorities are collected and reviewed.

VI. There yet remains a numerous and very difficult class of cases, where questions of fact or construction, as well as questions arising upon the law of agency, are to be decided.

Such as, in whose name was the contract made? To whom was the credit given? Or who was intended to be charged?

But such questions are not embraced within the design of the Commentaries; and reference must be had to professed treatises on the law of agency for their solution. Story on Agency, §§ 147-163. Paley on Agency, (by Dunlap,) chap. 3, p. 1, § 3, pp. 180-184. See Moss v. Livingston, 4 Comst. R. 208.

MOTH