* Strong, J.,

who charged the jury, (after stating the ' case and the points in defence,) said that, as to the authority of George Keith to make a usurious or illegal contract, it was in evidence that he had a general authority to make contracts for his principal; and he thought it ought to be presumed that the agent made the contract which the principal intended ; but whether it be so or not, shall the defendant say, as a defence to the present action, that he did not authorize his agent to make such a contract ? He *107thought not. Then as to the notice to the plaintiff, subsequent to the contract, and before he paid the contents of the note ; what is the defence ? The defendant says, “ It is true the money was borrowed for me. I received it, and had the benefit of it. I requested you to become my surety and sign the note, and you have paid the contents; yet, as I had a legal right to avoid the note, you shall not recover of me.” Will the law permit the defendant to get rid of the present action on such grounds ? He presumed it would not. No man is bound to take advantage of a penal law, and avoid a contract which he ought in equity to perform. The plaintiff was under no obligation to dispute the payment of the note which he had given; and nothing could have excused the defendant but his giving express notice to the plaintiff, that he (the defendant) himself did not mean to pay the contents of the note, and forbidding the plaintiff to do it; and this, he said, was the opinion of a majority of the Court.

The jury found for the plaintiff.

(Strong, Sedgwick, Sewall, and Thacher, justices, present.)