290. 2 C. & m. 530. Kieran V. Saunders, 6 Ad. & e. 516. Betteley V. Reid, 4 q. B.

511. Vide Sims v. Brittain, 4 B. <fe Ad. 376. However if the property in the agent's

hands have heen fraudulently obtained by the principal from third persons, this rule

does not apply ; Hardman v. "VVilcox, 9 Bingh. 382 ; for no man is bound to make

himself the instrument of a fraud, ante, page 88. See Grawshay v. Thornton, 2 M.

AC. 1.

(В») Lord Chedworth v. Edwards, 8 Ves. jun. 49. Lord Hardwicke v. Vernon, 14

J 58 MERCANTILE PERSONS.

Rights of Principal against Agent.

accountable only to his own immediate master ; (j ) unless indeed

he have been a party to a breach of trust, for then the rule of equity

applies, viz., that all parties to a breach of trust are equally liable,

'and there is between them no primary liability, {k) In stating this

account, the principal will, in the absence of his own express or

Implied agreement to the contrary, (0 be entitled to every m-

crease made from his own property, (m) Thus an agent who has

made interest upon his principal's money will, in general, be obliged

to account for it; (n) however, a mere stakeholder, such as an auc-

tioneer receiving a deposit, will be excused; (o) and no interest is

due for money which has lain dead in the agent's hands, unless his

employment was of such a nature as to render it his duty to invest

it. (p) He will also be charged with all payments actually made

to him, and with all losses incurred by his own negligence, or even

through the imposition of a forger ; for when an agent is called on

to transicr his employer's property by virtue of an authority given

to a stranger, he must examine into its validity at his peril, (q)

Ves. 510. Topham v. Braddick, 1 Taunt. 572. Lady Ormond v. Hutchinson, 13 Ves.

47. Lupton V. White, Panton v. Panto n, 15 Ves. 436.

(;•) Cartwright v. Hateley, 1 Ves. jun. 292. Pinto v. Santos, 5 Taunt. 447. Ste-

phens V. Badcock, 8 B. & Ad. 357. Howell v Batt, 5 B. & Ad. 504. Cobb v. Becke,

6 Q. B. 930. See Baron v. Husband, 4 B. & Ad. 611.

(it) Wilson V. Moore, 1 Myl. & K. 146.

(/) Lord Chedworth v. Edwards, 8 Ves. 48. Beaumont v. Boultbee, 11 Ves. 360.

Bee Shepherd v Maidstone, 10 Mod. 144.

(»«) Brown v. Litton, 1 P. Wms. 141. Massey v. Davies, 2 Ves. jun. 317. v.

JoUand, 8 Ves. 72. Docker v. Simes, 2 Myl. & K. 655. Diplock v. Blackburne, 3

Camp. 43. See Taylor v. Plumer, 3 M. & S. 562. It is on this principle, viz., that

the employer has a right to every increase made from his own propertj', that if he

engage a servant or agent, stipulating for his whole time and labor, ex. g. the mas-

ter of a ship, and that servant undertake another agency, the first employer will be

entitled to retain against the servant any remuneration earned by him in his second

occupation. For the servant's whole time and labor is the master's property, and

consequently the remuneration earned therewith is an increase made from his pro-

perty. Tliomson v. Havelock, 1 Camp. 529 Lidgate v. Williams, 4 Hare, 465. Dip

lock V. Blackburne, 3 Camp. 43 ; Abb. on Shipp. part 2, cap. 4. See Patmore В«. Col-

burn, 4 Tyrwh. 847. 1 C. N. & R. 65.

(w) See Rogers v. Boehm, 2 Esp. 704.

(o) Harrington ii. Hoggart, 1 B. & Add. 577.

(p) 1). JoUand, 8 Ves. 72.

(y) Foster v. Clements, 2 Camp. 17. See Smith v. Mercer, 6 Taunt. 76. Kcgom

PRINCIPAL AXD AGENT. 159

Eights of Principal against Agent.

But he will not be chargeable with any loss incurred by him, with-

out default or negligence, while he is engaged in the prudent exer-

cise of his discretion, and in pursuance of the regular and accus-

tomed course of trade, (r) It seems, however, that if he place his

principal's money to his own account at his banker's without any

mark distinguishing it from his own, he will be answerable for it