In order to return it to the person who paid it to him. Besides

which, in Buller v. Harrison, had the agent paid the money he

{t) Buller V. Harrison, Cowp. 565. Horsefall v. Handley, 8 Taunt. 136. Green-

Vvay V. Hurd, 4 t. R. 553, Vernon, 136, 208.

(m) 3 M. & S. 344. See Calland v. Lloyd, 5 Mee. & Welsh. 27.

(w) See Gary v. Webster, 1 gtr. 480. M'Carthy v. Galvin, 9 A. В«fe E. 612.

PRINCIPAL AND AGENT. 015

Rights of third Parties against the Agent.

received from the underwriter, in discharge of the foul loss, over

to his principal, he would have rendered himself an instrument of

fraud, which, as we have already seen, no agent can be obliged to

do. Except in such cases as these, the maxim respondeat superior

has been applied, and the agent held responsible to no one but his

principal, (iv) Thus, in Stephens v. BadcocJc, (x) the defendant, an

attornej^'s clerk, having received, by his master's orders, rents for

the plaintiff, a client; it was held, that he was not responsible to

the plaintiff, though his employer, the attorney, had since become

a bankrupt : so it was held, that an attorney who had received

cash for his principal upon a sale which went off, could not be sued

by the intended vendee for it. (?/) Nor can an action for money

had and received be brought against the agent who has received

It on behalf of his principal for the purpose of trying the existence

of a right in that principal ; thus, the right of a lord of the manor

cannot be tried in an action against his steward for quit-rent

Voluntarily paid : (2) and these decisions are but just, since, as the

agent is estopped from questioning the title of his principal, he

would, but for this rule of respondeat superior, be frequently ex-

posed, without any defence, to two different suits, in respect of the

same subject matter, (a)'-^

(w) Cobb V. Becke, 6 Q. B. 930.

(x) 3 B. & Ad. 354. And see Baird v. Robertson, 1 M. & Gr. 981.

(y) Bamford v. Shuttleworth, 11 A. <fc E. 926.

(z) Saddler v. Evans, 4 Burr. 1984. Staplefield v. Yewd, cited ibid. B. N. P. 138.

See Alexander v. Southey, 5 B. & A. 24Y. Wilson v. Anderton, 1 B. & Ad. 450.

(В«") See White v. Bartlett^ 9 Bingh. 378: sed vide Hardacre v. Stewart, 5 Esp. 103.

* The general doctrine stated in the text was discussed and approved in Elliot v.

Swartwout, 10 Peters, 137. It was held in that case, that a collector of the revenue

was personally responsible in an action to recover back an excess of duties paid to

him as collector, and by hina paid over to the Treasury of the United States, in good

faith, and under instructions from the department, if at the time of payment, notice

was given to him that the duties were charged too high, and that the party paid for

the purpose of getting possession of his goods, and intended to sue to recover back

the amount, and that he should not pay over the excess into the Treasury, but that

the collector would incur no personal responsibility, unless protest was made at the

time of payment, and such notice given. "No instructions," the Court says, "from

the Treasury Department, could impair the rights of the plaintiff, or qualify the re-

eponsibility of the defendant." S. P. Bend v. Hoyt, 13 Peters, 263. But in Gary a'