the 97., (which he had not paid over to his master the attorney, or to his estate,) the clergyman brought an action against him to recover the money. But the court held that the action could not be sustained, inasmuch as the clerk had received the money as the agent or servant of the attorney, and was bound to pay it over to him, or to his assignees. (q)

A managing owner of a ship employed certain agents for general purposes, and amongst others to receive and pay monies on account of the ship. He kept a general account with them, and also a separate account as managing owner, of the ship's disbursements and earnings, and the account between himself and his co-owners. In order to obtain the freight earned by the vessel on a voyage to India from the East India Company, it was necessary that a receipt signed by the managing owner, and by one or more of the other owners also, should be given for the money due; and upon a receipt of this description, signed by the managing owner and one of the other owners, the agents received 2,000l. and upwards from the East India Company, which was placed by the agents to the credit of the managing owner in his account with them. This managing owner died, and after his decease an action was brought by the surviving joint owners. of the ship against the agents to recover from them the balance appearing to be due on that account as money had and received to their use. But the court held, that although the concurrence of one of the plaintiffs as owners was necessary, in order to enable the agents to receive the money from the East India Company, yet that it was received by the defendants as the agents of the managing owner, and they by such receipt became accountable to him for it during his life, and to his executors after his decease; that the transaction was in effect the same as if the plaintiffs and the managing owner had received the money and it had been then handed over to the managing owner who had then placed it in the defendant's hands on his own account, and that if the plaintiffs had been unwilling to trust the managing owner with the money, they should have raised a separate account in their own names as owners of the ship" with the agents; and then the money would have been received by them to their use, and the agents would have been responsible to them for its application, but not having done that, they could not treat the agents as their debtors. (r)

In an action against a clerk to the guardians of a poor law union for

(q) Edden v. Read, 3 Campb. 339. Stephens v. Badcock, 3 B. & Ad. 354. As to payments by the agent to the principal, when the latter is in insolvent circumstances, see White v. Bart

lett, 9 Bing. 378; 2 M. & Sc. 520, s. c. Hardman v. Willcock, 9 Bing. 408, 382, n.

(r) Sims v. Brittain, 4 B. & Ad. 375; 1 N. & M. 594, s. c.

money had and received by the latter for the use of the plaintiff, it appeared that the latter had been indicted for disobeying an order of sessions for the maintenance of a bastard, and had compromised the matter and paid to the clerk a certain sum on account of costs and for the maintenance of the child; that the order of sessions had subsequently been found to be defective and void, and that the plaintiff had thereupon brought his action against the clerk to recover the money he had paid him; and it was held that the clerk was not liable to refund the amount. (s)

If the payment to the agent is void ab initio, so that the money never was received by him for the use of his principal, and he is consequently not accountable to the latter for it, he is bound to refund the amount, if he has not actually paid it over at the time he receives notice of the mistake. Thus, if money, through a mistake of fact, be paid to an agent, and placed by him to the account of his principal, but not paid over, an action lies against him for the recovery of the money, and the mere passing such money in account, making rests without any new credit given, fresh bills accepted, or further sum advanced to the principal in consequence of it, is not equivalent to a payment of it over.

An insurance broker, having effected a policy of insurance for his principals, subsequently gave notice of a loss to the underwriter, who, imagining the loss to be fair, paid to the broker the sum of 2,1007. as due upon the policy. The broker immediately passed the whole sum in account with his principals, and gave credit to them for it against a sum of 3,000l., in which they stood indebted to him. Shortly afterwards it was discovered that the loss was a foul loss, and it was held that the broker was bound to refund the money. (t)

A bar of silver having been forwarded to an agent to sell, the latter sold it to the plaintiffs at a price proportioned to the quantity of silver in the bar, which was to be ascertained by the assay of the assay-master. The bar having been assayed, the plaintiffs paid the defendant 887., the supposed value of the silver, according to the assay-master's certificate, and the defendant then informed his principal of what had been done, and credited him in his account with the amount. Subsequently it was discovered that a mistake had been made in the assay, and that the bar contained much less silver than the assay-master had certified, whereupon the plaintiffs applied to the defendant for a return of the money, offering to return him the silver, but the defendant refused on the ground that he had forwarded

(8) Goodall v. Lowndes, 6 Ad. & E., N. S., 464.

(t) Buller v. Harrison, 2 Cowp. 565. Bishop v. Eagle, 10 Mod. 23.

his account to his principal, in which he had credited him the full sum ; it was held, however, that as the money had not been actually paid over, the defendant was bound to refund it. (u)

But if the agent has bona fide handed over the money to his principal, or settled for it in account with the latter, without notice not to do so, he cannot be called on to pay it back again. The mere intermediate hand is not responsible unless he be "caught with the money in his possession." (x)

The doctrine, however, that the receipt of the agent is the receipt of the principal does not extend to the case of a wrong doer, and if an agent gets money into his hands by his own illegal act, he cannot discharge himself from the liability by paying it over to his principal. (y)

A gaoler, with the sanction of the justices, let a room in the prison to a prisoner at a rent of a guinea a week, and the transaction being illegal, the prisoner subsequently brought an action against the gaoler for the recovery of the weekly sums paid to him; and it was held that the gaoler was responsible for the repayment of the amount he had received, although he had paid it over to the justices at the quarter sessions. (2)

An attorney brought an action and recovered a sum of money on the retainer of a man who professed to act under a power of attorney from the party really entitled, but which power of attorney was forged; and an action having been brought against the attorney for the recovory of this money, it was held that the fact of his having paid it over to his false employer constituted no answer to the action. (a)

If an agent obtains money in the name of his principal by fraud, extortion, or deceit, if he detains goods which he has no right to detain, and compels the owner to pay him money as the price of their restitution, he cannot shelter himself from responsibility on the ground that he is an agent. "A payment to A., expressly as the agent of B., for the purpose of redeeming of goods wrongfully detained by B., and a receipt by A. expressly for B.," will still give "a right of action against A. for money had and received." (b)

A sheriff having, in obedience to a writ from the Court of Exchequer, issued his warrant to his bailiff requiring the latter to levy certain small

(u) Cox v. Prentice, 3 M. & S. 344.

(x) Horsfall v. Handley, 2 Moore, 5; 8 Taunt. 136, s. c. White v, Bartlett, 9 Bing. 378. Coles v. Wright, 4 Taunt. 198. Tope v. Hockin, 7 B. & C. 111. Whitbread v. Brooksbank, 1 Cowp. 69.

(y) Townson v. Wilson, 1 Campb. 396; Anon.

398, n. Clark v. Johnson, 3 Bing. 424.

(z) Miller v, Aris, 1 Selw. N. P. 90 (n). (a) Robson v. Eaton, 1 T. R. 62; Rogers v. Kelly, 2 Campb. 122.

(b) Per Cur. Smith v. Sleap, 12 M. & W. 588. Wakefield v. Newbon, 6 Ad. & E., N. 8., 280. Ashmole v. Wainwright, 2 ib. 837.

sums of money on a parish, the bailiff illegally compelled one of the inhabitants, under a threat of distraining his goods, to pay him the whole amount, and the latter having brought an action against him for the extortion, it was held that the fact of the bailiff's having, before the commencement of the action, paid over the entire sum to the sheriff, and the sheriff to the exchequer, constituted no defence to the action. (c)

If a party acts as the agent of an executor de son tort in collecting the assets, and knows at the time that his principal is not the legal personal representative, he is himself liable as executor de son tort, and responsible for the money he has received, although he may have duly accounted with his principal, and paid over to the latter all the money he has collected. He can only discharge himself by paying the amount to the legal personal representative. (d)

If an agent sells goods with a full knowledge that he has no right to sell, and conceals that fact from the buyer, he is liable to the latter in a special action on the case in assumpsit for the deceit, although before action brought he has paid over the price. (e) So if he misleads the plaintiff by giving him to understand that he has not paid over the money, and thereby induces the plaintiff to sue him for its recovery, he is then precluded from insisting on the defence of payment over. (ƒ)

If a person receives a deposit of a sum of money in the character of a stakeholder, he is personally liable if he pays over the money before the condition on which it was to become due is performed, except when the money has been illegally deposited in his hands, when he is bound to return it on demand. (g) An auctioneer who has received a deposit on the sale of an estate, holds the money as a mere stakeholder; (h) and it is consequently his duty not to part with the deposit until the sale is completed, and until it appears by the event to whom it properly belongs.(i) If, therefore, he pays over the money, and a defect of title is subsequently discovered, which prevents the purchase, he will be liable in an action for money had and received, although he had no express notice to retain the money in his hands to abide the event. (k)

In the above cases it must be observed, that the party recovering the money from the agent is the person who actually paid it into his hands. The mere circumstance of money having been paid by a prin

(c) Snowdon v. Davis, 1 Taunt. 359. Lovell v. Simpson, 3 Esp. 153.

(d) Sharland v. Mildon, 10 Jur. 771. (e) Peto v. Blades, 5 Taunt. 657.

(f) Dampier, J., Edwards v. Hedding, 5

Taunt. 816.

(g) Hastelow v. Jackson, 8 B. & C. 221.
(h) Burrough v. Skinner, 5 Burr. 2639.
(2) Id. Edwards v. Hodding, 5 Taunt. 815.
(k) Gray v. Gutteridge, 1 M. & R. 614.

cipal to his agent, with directions to pay it to a third person, imposes no liability upon the agent to such third person, unless there is an express or implied assent on the part of the agent to pay the money according to the directions he has received. The mere receipt of the money by the agent is no evidence of an implied assent to apply it to the purposes for which it was professedly remitted to him. He holds the money for the use of the remitter: the privity of contract is between him and his principal, and not between the agent and such third party, until by some act done, or by some engagement entered into with the person who is the object of the remittance, the agent has consented to appropriate the money to his use.(1)

Liability of the AGENT to the PRINCIPAL.-If the agent is guilty of any negligence, misconduct, or breach of faith, in the conduct and management of the business entrusted to him by the principal, he of course subjects himself to an action for damages at the suit of the latter.(m) But the principal cannot convert his own agent into a principal, and sue him as such.(n)

(1) Williams v. Everett, 14 East, 597. (m) Boorman v. Brown, 3 Ad. & E. N. s. 525. Raleigh v. Atkinson, 6 M. & W. 670. Marsden

v. Newmarch, 10 Jur. 759.

(n) Whalley v. Davison, 10 Jur. 573.