5 Johns. 43; Jackson v. Walsh, 14 id. 407; Williams's Ex'rs v. Marshall, 4 G.

& J. 376; Litchfield v. Cudworth, 15 Pick. 31; Pitt v. Petway, 12 Ired. L. 69. How far a court of law, at the instance of the principal, will go in avoiding such sales or purchases by the agent for his own benefit is not quite clear. Probably in no jurisdiction where chancery powers have existed from the beginning, and where courts of law have not been compelled to act, in order to prevent parties from being without remedy, would it be held that a sale by an agent to himself is avoided at law by the mere dissent of the principal, without proof of fraud, or breach of a positive instruction to make sale to some third party. See Jackson v. Walsh, 14 Johns. 414, 415; Williams v. Marshall, 4 G. & J. 376, 380; Harrington v. Brown, 5 Pick. 521, per curiam; Shelton v. Homer, 5 Met. 467; Perkins v. Thompson, 3 N. H. 144; Lessee of Lazarus v. Bryson, 3 Binn. 54; Den v. Hammel, 3 Harrison, 74, 81; Mackintosh v. Barber, 1 Bing. 50.

And even where the sale is a judicial sale, under a title superior to that of the trustee or the cestui que * trust, one standing as trustee in respect to such property in his possession is not, it seems, permitted to purchase and hold for his own benefit. (p)

Among the obvious and certain duties of an agent is that of keeping a correct account of all money transactions, and rendering the same to the principal with proper frequency, or whenever called on. (q)1 The court has compelled the rendering of such account after twenty years had elapsed. But, in general, after a considerable time has elapsed, and there are no circumstances to repel the presumption of an account rendered, accepted, and settled, the jury are instructed to make that presumption. (r) The agent of an agent is generally accountable only to his own principal, and not to the principal of the party for whom he acts; that is, only his immediate employer can call him to account. (s) And a sub-contractor cannot pass by his immediate employer and sue the principal or proprietor of the work. (t)

If an agent, without necessity, has mixed the property of his principal with his own, in such a way that he cannot render an account precisely discriminating between the two, the whole of what is so undistinguishable is held to belong to the principal;(u) for it was the duty of the agent to keep the property and the accounts separate, and he must bear the responsibility and the consequences of not doing so.1

(p) Jewett v. Miller, 6 Seld. 402.

(q) Topham v. Braddick, 1 Taunt. 572; Lord Chedworth v. Edwards, 8 Ves. 49; White v. Lady Lincoln, 8 Ves. 363; Lord Hardwicke v. Vernon, 14 Ves. 510; Lady Ormond v. Hutchinson, 13 Ves. 47; Lupton v. White, 15 Ves. 436; Pearse v. Green, 1 Jac. & W. 135; Motley v. Motley, 7 Ired. Eq. 211; Kerfoot v. Hyman, 52 Ill. 512; Robson v. Sanders, 25 S. C. 116. See, as to the classes of persons whom equity will compel to account, Terry v. Wacher, 15 Sim. 448. - It seems that where the agent has made a mistake in the account he will not be bound by the account as given, although his principal has acted upon the presumption of its correctness in his dealings with third parties, - provided there was ground from which the principal might reasonably have inferred the existence of the error. In the case adjudged, the principal, like the agent, was a broker, and the mistake in the account was one which a knowledge of the usage of the stock market might have enabled him to dectect. Dails v. Lloyd, 12 Q. B. 531.

(r) Topham v. Braddick, 1 Taunt. 571.

(s) Stephens v. Badcock, 3 B. & Ad. 354, where it was held that money had and received could not be maintained against an attorney's clerk, who, in the absence of his master, and authorized by him, received certain money due to the plaintiff which the attorney had been employed by the plaintiff to collect; although the absence of the attorney (who proved to be in a state of insolvency) continued, and the defendant had not paid over the money to him or his estate. The agent when he received the money had given a receipt signed " for Mr. S. J. [the attorney], J. B." [the defendant]. See also Pinto v. Santos, 5 Taunt. 447; Myler v. Fitzpatrick, Mad. & G. 360. See ante p. * 84.

(t) Lake Erie R. Co. v. Eckler, 13 Ind. 67; Corbett v. Schumacker, 83 Hi 403.

1 And the agent cannot defeat his principal's right by setting up that the transactions by which the money was obtained were illegal. Brooks v. Martin, 2 Wall. 70; First Nat. Bank v. Leppel, 9 Col. 594; Snell v. Pells, 113 Ill. 145; Reed v. Dougan, 54 Ind. 306; Gilliam v. Brown, 43 Miss. 641; Souhegan Bank v. Wallace, 61 N. H. 24; Baldwin v. Potter, 46 Vt. 402; Kiewert v. Rindskopf, 46 Wis. 481.

As the principal is entitled to receive from the agent property intrusted to him, with its natural increase,(r) he may charge the agent with interest for balances in his hands, unless the nature of the transaction, or evidence, direct or circumstantial, shows that the intention of the parties was otherwise. (w) This may be inferred, for instance, where there has been a long acccumulation, and the money has lain useless in the agent's hands, and the principal has known this, and made no objection. (x)

It is a general rule, that all profits or advantages made by an agent in the business of his agency, beyond his due compensation, belong to his principal. (xx) 2

(u) Lupton v. White, 15 Ves. 436, 440; Chedworth v. Edwards, 8 Ves. 46; Wren v. Kirton, 11 Ves. 377; Atkinson v. Ward, 47 Ark. 533; Hart v. Ten Eyck, 2 Johns. Ch. 62, 108.

(v) Brown v. Litton, 1 P. Wms. 140; Massey v. Davies, 2 Ves. Jr. 317; Dip-lock v. Blackburn, 3 Camp. 43; Short v. Skipwith, 1 Brock. 103. See Colt v. Clapp, 127 Mass. 476.

(w) Dodge v. Perkins, 9 Pick. 368, 388. "Upon the principles of the common law, we think it clear that interest is to be allowed, where the law by implication makes it the duty of the party to pay over the money to the owner, without any previous demand on his part." Putnam,

J. As to receivers, see------v. Jolland, 8

Ves. 72.

(x) Lord Kent/on seems to have been of opinion, in Rogers v. Boehm, 2 Esp. 704, that neither at law nor in equity, if money had been remitted to an agent, and he suffered it to remain dead in his hands, could he be made liable for interest; though he should be chargeable with interest if he mixed the money with his own, or made any use of it.

(xx) Lafferty v. Jelley, 22 Ind. 471.

1 Thus if the agent deposits the principal's money in the same bank account with his own, he is liable to his principal for the loss if the bank fails. Williams v. Williams, 55 Wis. 300. So, even though the agent deposits his principal's money separately, if there is nothing to indicate that it is held in a fiduciary capacity. Naltuer v. Dolan, 108 Ind. 500.

2 Thus if the agent receive an improper commission or bribe, his principal can recover it. Mayor, etc. of Salford v. Lever, 25 Q. B. D. 363.

The same principle is applicable if the agent deals in the business of the agency for his own benefit in any way, - as by buying up claims against his principal at a discount and seeking to enforce them for the full amount. Noyes v. Laudon, 59 Vt. 569. Or by buying land for one price and turning it over to his principal at a greater price. Crump v. Ingersoll, 44 Minn. 84. Or by buying property for himself which it was his duty to buy for his principal. Hughes v. Washington, 72 Ill. 84; Rose v. Hayden, 35 Kan. 106; Snyder v. Wolford, 33 Minn. 175; Cameron v. Lewis, 56 Miss. 76; Wood v. Rabe, 96 N. Y. 414; Seichrist's Appeal, 66 Pa. 237. Or renewing a lease in his own name of premises used for the business of the principal. Gower v. Andrews, 59 Cal. 119; Davis v. Hamlin, 108 Ill. 39. Or acquiring for his own benefit a title adverse to his principal's. Fountain Coal Co. v. Phelps, 95 Ind. 271; Continental Life Ins. Co. v. Perry, 65 Ia. 709. In Collins v. Sullivan, 135 Mass. 461, the defendant agreed to help find a man who would advance money to enable the plaintiff to recover land which he had lost by foreclosure. The plaintiff relying on this agreement made but little effort himself, the defendant dissuading him from seeking other assistance with the secret intent of buying the land himself, which he subsequently did. It was held these facts were not sufficient to enable the plaintiff to charge him as trustee. This case, though it seems open to criticism, has been followed in

If an agent employed for any special purpose, discharges his * duty and does all he was required to do, he is entitled to full compensation, although the principal declines or refuses to take advantage of the agent's act, or even to adopt it. Thus, if an agent employed to sell land succeeds in finding, for his principal, a buyer on the stipulated terms; but the principal refuses to make the sale and rescinds the authority, the agent may have his action for his services; and the measure of damages (which would be a matter of law) would, generally, be his regular commission on the sale. (y) 1

It has been held to be the duty of an agent appointed to collect money, to give immediate notice when any is collected. (z)