
    Reuben Leach vs. John T. Blow.
    In an action of debt against K. and P. and C. individually, upon a promissory note, which they were alleged in the declaration to have made personally, styling themselves trustees of the Methodist church, a note signed by K. and P. and C., in the body of which they say, “ we as trustees of the Methodist church promise to pay,” &c., is inadmissible in testimony; the note declared on being a personal liability, and the note offered in evidence establishing a fiduciary liability.
    . In error from the circuit court of Rankin county; Hon. John H. Rollins, judge.
    At the June term 1842, of this court, Reuben Leach brought his action of debt against John W. King, John A. Pearson, and R. Gr. Crozier, on the following promissory note and indorsement :
    “$995 00. Bhandon, Oct. 30th, 1839.
    “ On the first day of January, 1839, we, as trustees of the Methodist church, promise to pay Hallett & Stewart, nine hundred and ninety-five dollars, value received the day above written.
    "(Signed)
    which was assigned to the plain tiff as follows; — “We sign over the within note to Reuben Leach, December 3d, 1840.
    “ Hallett & Stewart.”
    At the June term, 1842, King and Pearson pleaded two pleas, to which there was a demurrer, and the cause was continued; at the December term, 1842, the suit was dismissed as to Crozier and King, and the death of Pearson was suggested, and sci. fa. 
      ordered to bring in his personal representatives; a sci.fa. was issued and served, and the cause was so proceeded in, that the demurrer to the pleas was confessed, and John. T. Blow, administrator of Pearson, pleaded “ nil debet.” on which the plaintiff took issue, and the cause was submitted to a jury at the December term, 1843, on this issue. On the trial, the plaintiff offered the above note to the jury as evidence on his part, which was objected to by the defendant’s counsel, and the note excluded from the jury by the court. The plaintiff excepted, and a verdict followed for the defendant, and judgment accordingly.
    An appeal was prayed and allowed to the January term of this court, 1844, but was dismissed on account of the appeal bond not being executed by the plaintiff himself, ^he plaintiff now sues out a writ of error.
    
      George T. Swann, for plaintiff in error, contended,
    That the court ought to have permitted the note exhibited to be read to the jury. He cited the following authorities : Fitch v. Lawton, 6 How. 371; Leadbitter v. Farrow, 5 M. & S. 349; 4 Car. &P. 121; 5 Taunt. 749; 7 ibid. 159; Appleton v. Sinks, 5 East, 148, and a striking case in 3 Caines R. 70.
    It was contended below by the defendant, that the description being in the body of the note, was sufficient to take this case out of the general rule. But there is no definite direction to any particular society of the general denomination of methodists, in the body of this note. It would apply equally as well to the methodists of any other state, and of all ages and sexes, as to the society of that name at Brandon. There is no such corporation anywhere as that described in the signature or the body of the note. The case of Taft v. Breioster, 9 Johns. R. 334, is a strong example of the parties being held individually liable, where a very definite description of the particular society for whom they contracted, was contained in the condition of the bond sued on.
    In 15 Johns. R. 1, is the only case I have found in New York which seems even to vary the rule to be deduced from the above case in 9 Johns. But in that case the note went to the jury — it was made expressly for the company — and the bill of parcels for which the note was given, was explicitly made against the company. It is reconcilable in principle, with the general train of adjudicated cases. Cocke v. Dickens, 4 Yerg. 29; Barker v. The Mechanics Fire Insurance Company, 3 Wend. 94; Buffum v. Chadwick, 8 Mass. 103; S. P. 11 Mass. 27; 12 Mass. 173; Forster v. Fuller, 6 Mass. 58; Tippets v. Walker et al. 4 Mass. 595.
    The general principle applicable to all such cases seems to be, that any person acting in behalf of others, (except, perhaps, a known agent of government,) as trustee, agent, guardian, executor, cashier, president, &c., in order to protect himself from individual liability, must use some words of restriction, which expressly and necessarily exclude the presumption of an intention to charge himself, as “ without recourse,” <fcc. See Cbitty on Bills, 37, 38, 215 — “although he only intended to subject himself to liability in the event of his having assets.” Ibid. 215. 1 Term R. 487.
    The doctrine that the contract, to bind the principal, in cases of sealed instruments, must be in the name of the principal himself, and not in that of the agent as such, is laid down in Story on Agency, ch. 7, sec. 147, as “ an ancient rule of the law,” without any exception. And although, in some subsequent sections, he states that the rule has been relaxed in some cases, in reference to the “ unsolemn instruments” used in mercantile transactions; yet all the exceptions stated, are such as plainly exclude the idea of a credit being given to the agent with whom the creditor was dealing, and show a direct reference to the responsibility of the principal on the face of the contract. After referring to the case of Lefevre v. Lloyd, 5 Taunt. 749, he says, “for in such a case” (hardly distinguishable from this) “ the bill imports, on its face, a personal liability, as drawer, in favor of all persons who are, or may become parties to the bill; and there is nothing in the character of an agent which excludes such personal liability, if he chooses voluntarily to incur it in favor of his principal as well as in favor of third persons.” Story on Agency, ch. 7, sec. 156, 159; 11 Mass. 54.
    
      The very nature of a religious society, composed as it always is, of persons of all ages, sexes and colors, precludes the idea of a credit being given to the society in its aggregate character. The laws of its creation do not define the civil liabilities of its members ; and our act of 1838, if it should be relied on in this case, does not authorize the officers of such societies to issue notes upon their credit, or prescribe any civil liabilities for the membership of such corporations. In business transactions, the individuals acting as trustees, agents, elders, &c., are looked to as responsible for the fulfilment of the contract they make. Upon a contrary doctrine, no creditor’s demand could ever be enforced against such a corporation, for no corporators, or but few liable to be sued, could, in general, be found.
    No reason appears to distinguish this case, as presented on the record, from that of Fitch v. Lawton, 6 How. 371, (in which the court said, — “It (the note) is in the form of an ordinary promissory note, and on its face shows a good cause of action. If it was susceptible of explanation, that explanation should have come from the other side. The note gives a good prima facie case for recovery, and the plaintiff must succeed, unless his right is defeated by the proof of the defendants,”) or from that of Robertson v. Banks, 1 S. & M. 666.
    
      W. C. Harper and T P. Ware, for defendant in error.
    For the defendant in error it is insisted that the court did not err in excluding the note offered in evidence from the jury. This is an action of debt on simple contract, and the defendant being sued in his representative capacity, his plea, “nil debet,” being .the general issue in such case, covers every ground of de-fence. How. & Hutch. 410. The plaintiff’s cause of action not being set out in “ hcec verba," and the defendant not being entitled to crave oyer of the instrument sued on, a demurrer to the declaration would not have reached the defence, and the only course was to object, as was done, to the introduction of the note, in evidence. Robertson v. Banks, 1 S. & M. 671. Then the simple question arises : Was the note, offered in evidence, described according to its legal effect, in plaintiff’s declaration ? For the defendant, it is insisted, that there is a material variance and misdescription.
    The suit is against the defendants individually, and the only notice taken in the declaration of the special, exclusive character, in which they contract, is the following words in the descriptive part of the declaration: “For that the said defendants, styling themselves. trustees of the Methodist church,” which may be admitted to have been sufficient, provided it had been merely added to their names asa “descriptiopersonarum,” intended to qualify and control a previous, direct, personal contract ; and such is the full extent to which the authorities cited by plaintiff in error extend. Taft v. Breivster, 9 Johns. 334; 13 lb. 307, and other authorities cited; and such have been the decisions of this court. Berthe v. Biggs, 1 How. 195; in which the cause of action was made in an individual, and not in a representative capacity; such was also the case in Fitch v. Law-ton, 6 How. 371; and Robertson v. Banks, 1 S. & M. 6.71.
    By the statute of this state, (How. & Hutch. 219,) any religious society within this state, may become a corporation, by electing trustees, and complying with the enabling provisions of that act. The existence of the Methodist church, as a religious society, has become a matter of general history, of which every person would be presumed to be cognizant, and of which courts of justice will take notice; such being the case, the plaintiff will be presumed, in law, to have contracted, not with reference to an individual liability of the trustees of such society, but to have given credit to the society, as a corporation, under the general law. How. & Hutch. 219.
    The very language of the body of the note sued on, is restrictive, and exclusively in a representative character, and the same restriction is added to the parties’ names. Without the qualifying conjunction “ as,” there might be some plausibility in the position of plaintiff, that the makers failed to show clearly that they were not contracting personally; but the expression “ we as trustees of the Methodist church,” on its face, forbids any such construction. “Enumeration excludes all not enumerated.”
    
      In Rathbone v. Budlong, 15 Johns. 1, a case precisely similar to the present, Chief Justice Spencer lays down the general principle, “ that an agent is not liable to be sued on contracts made by him in behalf of his principal, if the name of his principal is disclosed and made known to the person contracted with, at the time of entering into the contract; and, in fact, that there is no difference between the agent of an individual and of the government, as to their liabilities; ” and, in that case, no disclosure of the character in which the party contracted, is made in the note, except the words “for the Susquehannah Cotton and Woolen Manufacturing Company, Samuel Budlong, agent.” Yet the court remark, it is perfectly manifest that the note was given by the defendant, as agent for the company, and that the goods for which it was given were sold on the credit of the company. “To charge the defendant with the payment of the note, would violate every principle of justice and equity; nor is the law so unjust.” The same principle was distinctly laid down in 19 Johns. 60; which two cases overrule the cases of Taft v. Brewster, 9 Johns. 334, and Sheffield v. Watson, 3 Caines N. 69, so much relied on by plaintiff. See also Chitty on Contracts, 39.
    But it is contended, by plaintiff in error, that the note sued on exhibits no cause of action against the Methodist church, and, therefore, the makers are personally liable. The language of the statute, How. & Hutch. 219, is: “ The officers and trustees of any regularly established church in this state, shall have power to transact all legal business, touching the interest of their respective churches, in as full and ample manner as if they were incorporated by law respectively.” Had the defendants been incorporated “ as trustees of the Methodist church,” it will scarcely be contended that an action at law would not lie against them as such, on the note sued; yet, under the general statute, their rights and powers are the same, as though specially incorporated; and under a similar statute in Massachusetts, the supreme court held, that an action would lie against the church, as a corporation, on a note executed by its officers. 1 Pick. 372. See also 11 Serg. & Rawle, 129.
    
      That corporations are liable for the contracts of their agents not under the corporate seal, has been received as the law, since the decisions of the supreme court of the United States, in Bank of Columbia v. Patterson's Adm'rs. 7 Cranch, 299; 2 Gond. 501 ; and Pleckner v. Bank United States, 8 Wheat. 338; 5 Cond. 465; see also 19 Johns. 60, above cited. The case Taft v. Brewster, 9 Johns. 334, cited by plaintiff in error, appears to have been decided on the ancient rule, that a corporation could only contract by its corporate seal, which doctrine is expressly overruled by the above cases.
   Mr. Justice ThacheR

delivered the opinion of the court.

This was an action of debt, instituted in the circuit court of Rankin county by Leach, assignee of Hallett<fc Stewart, against King, Pearson & Crozier. The declaration alleges the cause of action to be, that the “defendants, styling themselves trustees of the Methodist church,” by the names of John W. King, John A. Pearson, and R. G. Crozier, trustees, promised to pay, &c. Plea in the action, nil debet, by the administrator of John A. Pearson, deceased. Upon the trial below, the plaintiff offered in evidence the following promissory note, to wit:

“$995 00. “ BRandon, October 30, 1839.

“On the first day of January, 1839, we, as trustees of the Methodist church, promise to pay Hallett & Stewart, nine hundred and ninety-five dollars, value received, the day above written.

“John W. King, j “John A. PeaRson, s “ Trustees “ R. G. Crozier, )

Upon an objection to the introduction, in evidence, of the foregoing note, it was not admitted by the court below, to which judgment of the court the plaintiff excepted.

The action was instituted against the defendants in their individual capacity. The description of the instrument in the declaration, which gave the foundation for the action, in point of law, is the description of an instrument made by the parties to it, in their individual capacity. If the promissory note offered in evidence, upon its face shows a note made by the parties defendant, in a fiduciary capacity, and not in an individual capacity, then, upon the principle that the probatum must correspond to the allegattim, the note offered in evidence is, plainly, such a variance as justified its rejection by the court. Had the note offered in evidence, been framed as described in the declaration, by the defendants merely styling themselves “ trustees,” &c. that description could properly have been regarded but as descriptio personarum ; but that note shows it to have been made by the defendants “ as trustees,” &c. which form of language has been held in this court, and, repeatedly, elsewhere, to be evidence of a contract or promise not made in an individual, but in a fiduciary capacity. Carter v. Phelps Adm'r. 8 John. 439 ; Neeley et ux. v. The Planters Bank, 4 S. & M. 118.

Judgment affirmed.  