216 Mercantile persoxs.

Rights of third Parties against the Agent.

But an agent cannot defend himself, even on the ground of pay-

ment over to his principal, if he receive money illegally from a

party who is not prevented from suing him by the rule pari delicto

potior est conditio defendentis. {b) This was decided in Miller v.

Aris, (c) where the money was received by a jailer from a prisoner

for rent of a room illegally let to him, and paid over by the jailer

to his employers, (d) Neither do the foregoing remarks extend to

cases in which the money gets into the agent's hands in conse-

quence of a tort committed by him under the directions of or

jointly with his principal ; for in .thai case the party aggrieved

might have sued Him in tort, and may npon the ordinary principle

waive his right to proceed in that form and adopt assumpsit, (e)

Of course, if an agent pay money to his principal, which was not

Intrusted to him for that purpose, he will not be discharged, (/)

ex. gr., if a stakeholder pay over the deposit before the condition on

which it was to become due is performed.

Although there must be special circumstances to render an

agent liable on contracts made for his employer, yet it is otherwise

If he commit torts while acting in his master's service. In such

a case, the principal will, it is true, often be liable, but then the

agent will invariably be so. {g) However, an agent is not answer-

ed) See Smith v. Bromley, Dougl. 696. Sharland v. Mildon, 15 L. J. C. C. 434-

(c) Selw. K P. 8th ed. 93.

(J) Accord. Townson v. "Wilson, 1 Camp. 396. Wakefield v. Newbon, 6 Q. B

276.

(e) Tugman v. Hopkins, 4 M. В«fe Gr. 389.

(/) Saddler v. Evans, ante. Snowden v. Davis, 1 Taunt. 359. Edwards v. Hod-

ding, 5 Taunt. 815.

{g) 12 Mod. 488, 1 Leon. 146, Roll. Ab. 94, pi. 5. Craneh. v. White, 1 Bingh. N

C. 414. Davies v. Vernon, 6 Q. B. 443. Perkins v. Smith, Sayer, 41, 1 Wils. 328.

Barker v. Braham, 2 Bl. 867. Goodwin v. Gibbins, 4 Burr. 2108. Bates v. Pilling, 6

B. & C. 38. Stephens v. Elwall, 4 M. & S. 259. Michael v. Alestree, 2 Lev. 172. Wil-

son V. Anderton, 1 B. & Ad. 450. Sharland v. Mildon, 15 L. J. C. C. 434. But see

Curtis, 3 How. 236, it was held by a majority of the Court, that this doctrine, as ap-

plicable to collectors of the revenue, had been abrogated by the Act of Congress of

Marc-h 3d, 1839, chap. 82, sect. 2; and that whether any means or not were left to

the claimant, of bringing his case before a court of justice, the collector was not per-

sonally responsible. See also Hurley v. Baker, 16 Mees. & Wels. 26. Wharton v

Hudson, 3d Rawle, 390. Colvin v. Holbrook, 2 Comst. 126.

PRINCIPAL AND AGENT. 217

Plights of third Parties against the Agent.

able to third parties for mere nonfeasance, that is, for neglectin.<'-

to do, as his master's agent, that which his master is bound, and

has deputed him, to do. Thus, if the servant of a common carrier

were to refuse to receive A.'s goods to be carried, on tender of the

proper hire, he would not be liable to an action at the suit of A.,

although the carrier, his master, would, and although the servant

would himself be liable to his master for a breach of duty as his

agent, (h)*

We have thus gone through the chief rules which affect the

relation of Principal and Agent. The subject of this chaper will

be, however, further illustrated by some of those contained in Booh

the Third, in which it is proposed to treat Mercantile Contracts.

For instance, it is obvious, that in the description of contracts of

affreightment, of insurance, or of sale, light must be cast upon the

duties of the agents, who are employed in the negotiation or exe-

cution of those contracts, and who are, of course, bound to know

and act upon the rules which govern them. The duty of the ao-ent

thus depends, in great measure, upon that of his principal, and, con-

sequently, upon the nature of those compacts from which the latter

takes its ori";in.

Alexander v. Southey, 5 B. (fe A. 247. Miles v. Solesby, 2 Mod. 242. In Roll. Abr. 95,

it is laid down, that if the servant of a taverner sell wine that is corrupted, know-

ing it to be so, no action of deceit lies against the servant, for he did it but as a ser-

vant ; whence it has been inferred, that a servant is not liable for fraud committed

in his master's business ; but surely this is difficult to be supported.

(/i) As to the liability of public officers for acts of omission, see Barry v. Ai'naud

10 Ad. & E. 646.

* The well-settled doctrine, that an agent is not liable to third persons for an

omission or neglect of duty in the matter of his agency, but that the principal alone

is responsible, was recognized in New York, in the recent cases of Drury v. Manhat.-

tan Co., 2 Denio, 118. Colvin v Holbrook, 2 Comst. 126.