The opinion of the Court was subsequently drawn up by
Shepley J.To support this action it is necessary to prove the misconduct or neglect of the agent, and that in consequence of it, the plaintiffs suffered damage. The neglect charged, consists in permitting a default to be entered by agreement in an action brought by Leonard Blanchard against the town. Before the default was entered and judgment rendered, the town had at a legal meeting voted to authorize the selectmen to pay the claim. The neglect and injury now complained of consists in not resisting the payment of a claim, which the town had agreed to pay. This simple statement of the case is sufficient to shew, that the action can be maintained only upon some unusual view of the relation between principal and agent. The argument for the town rests the right to recover upon grounds which distinguish it from the ordinary relation in such cases. One of these is, that the agent of a town appointed according to the provisions of the statute, becomes an officer of the law and bound to perform his duties in prosecuting and defending suits according to law, whether in so doing he conforms to, or disobeys the instruction of the principal.- The statute providing for the appointment, does not prescribe their duties, or define their powers. It only gives them the right to represent their towns and perform such acts as their principals might perform by any other agency, which would legally represent them. And to ascertain the relative rights and duties of towns and their agents, reference must necessarily be had, as in other cases, to the laws of the land. And these laws decide, that the agent cannot act against the express will of the principal without subjecting himself to an action for such damages, as he may thereby have occasioned. It is not to be understood that the agent may be required to do an illegal or immoral act.
Another ground taken in the argument is, that the agent cannot be justified by the vote of the town, because the town had no-legal right to pass such a vote.
*463It is said Blanchard had no legal claim upon the town for compensation for his time and money expended in its service by virtue of a vote of the town, because the town was not authorized to expend money for the purpose for which Blanchard was employed. Towns have power to employ agents, and if those agents are instructed to do an act not within the power of their towns to perform, the act will be inoperative, but does it follow, that the agent is not to be paid for his services ? But assuming the argument to be correct, and that Blanchard could not have recovered ; these parties are then presented in the position of a principal employing an agent to do an act not within the powers of the principal to accomplish, and in such case if the agent acts according to the instructions of the principal it affords no ground of complaint for the principal. He cannot say I had no right to give you such instructions, and therefore you must pay me for any injury which I have suffered in consequence of your obeying them. The gist of the action is the want of obedience, and that does not exist under such circumstances. Whatever rights third persons may have against the agent, it is not for the principal to make his own want of power the cause of complaint against the agent acting in obedience to the instructions given. If it be admitted that Blanchard could not legally recover, must a town litigate every claim brought against it, and pay only such, as have been proved to be legal and just by a judgment recovered ? Towns are liable to be sued and are empowered to defend, and this implies the power of judging of the proper means of defence, as well as the right to adjust suits upon such terms as their own interest may require. If this be allowed it is said, that towns may thus permit the property of the inhabitants to be taken for purposes for which it was never intended, that they should be liable to charge, or assessment. Be it so ; it only proves the imperfection of the system and its liability to be abused and perverted to improper purposes ; and that the powers, which are granted may by abuse be made injurious and even dangerous to the security of private property. What was intended for good may by perversion become an instrument of evil. The same result may be produced by the improper performance or by the neglect of many of the duties enjoined upon towns; and the inhabitants may be subjected to heavy losses beyond what was con*464templated by the laws. To prove that such results may by possibility happen by Allowing towns the powers necessarily implied, to enable them to exercise the powers actually conferred, is but another mode of shewing the imperfection of most, if no't of all legislation. And if towns by the abusé of the powers granted may subject their inhabitants to taxation for purposes not within the granted powers, it is not for the judicial department to devise and apply the necessary restrictions to prevent it.
Upon the principle upon which this action can be maintained, the selectmen after paying a ’doubtful claim in obedience to the vote of the town, if it can afterward be proved to have been for objects for which the town was not authorized to expend money, may be subjected to pay damages for that very act of obedience.
The adoption of such a principle, now unknown to the law, would render the town incapable of the exercise of the powers granted or of performing the duties enjoined, as well as sanction the grossest injustice. To avoid an evil, as yét prospective or imaginary, the Court cannot depart from the well established principles of law regulating the rights and duties of principal and agent.
Nonsuit, confirmed.