2 Baldwin v. Leonard, 39 Vt. 260, 266 (1867), per Steele, J.
3 Borell v. Newell, 3 Daly, 233.
4 Macbeath v. Haldimand, 1 T. R. 172; Bowen v. Morris, 2 Taunt. 374, 387; Unwin v. Wolseley, 1 T. R. 674; Lee v. Munroe, 7 Cranch, 366; Brown v. Austin, 1 Mass. 208; Dawes v. Jackson, 9 Mass. 490; 2 Kent, Comm. lect. 41, p. 632; Walker v. Swartwout, 12 Johns. 444; Gidley v. Lord Palmerston, 3 Br. & B. 275; Bend v. Hoyt, 13 Peters, 263; Story on Agency, ch. 11, § 302 et seq.; Crowell v. Crispin, 4 Daly, 100 (1871).
5 3 Chitty on Com. and Manuf. 213, 214; Unwin v. Wolseley, 1 T. R. 674; Walker v. Swartwout, 12 Johns. 444.
§ 255. An agent is personally liable to third persons for his misfeasances and positive wrongs;1 but he is, ordinarily, only responsible to his principal for his omissions and non-feasances in the course of his duty.2 The principal, in such case, would be solely liable. Thus, if the servant of a common carrier negligently lose a parcel of goods intrusted to him, the principal alone will be responsible to the bailor or owner.3 But if, in levying an execution, an officer should wilfully break and injure the property of the debtor, he would be personally responsible.4 So, also, if both principal and agent be wrongdoers, both are liable personally. Thus, if an auctioneer should be employed by a sheriff to sell goods at auction, which he had unlawfully seized upon an execution, both sheriff and auctioneer would be liable to an action of trespass.5 So one who has professed to have authority to act as agent is liable, to the party acting upon the warranty, if the latter's acts come within the limits of the warranty; but not, if they are beyond it.6 No action, however, will lie against the agent for the misfeasance of persons retained by him in the service of his principal.7
§ 256. There are, however, some exceptions to this rule as to non-feasances. Thus, the postmaster-general will not be liable for the default or negligence or misfeasance of his deputies, or clerks, on the ground of public policy; but the deputies will be treated as principals.1 So, also, by the principles of the maritime law, masters of ships, although the agents of the owners, will be responsible as principals to third persons, not only for their own negligences and non-feasances, but for that of their sub-agents.2 A master of a ship will not, however, be responsible for wilful trespasses and injuries, done by persons employed under him, any more than the owner will.3
1 Udell v. Atherton, 7 H. & N. 172; Barwick v. English, etc, Bank, Law R. 2 Exch. 259 (1867). See Archbold v. Howth, Irish R. 1 C. L. 608 (1866), discussing Udell v. Atherton.
2 Paley on Agency, by Lloyd, 396-399; Lane v. Cotton, 12 Mod. 488; s. c. 1 Ld. Raym. 646, 655; Story on Bailments, 400; Clark v. Mayor, etc, of Washington, 12 Wheat. 40; Randelson v. Murray, 3 Nev. & Per. 239; s. c. 8 Ad. & El. 109; Milligan v. Wedge, 12 Ad. & El. 737.
3 Lane v. Cotton, 12 Mod. 488.
4 Paley on Agency, by Lloyd, 396-399; Story on Agency, § 308; Cameron v. Reynolds, Cowp. 403; Perkins v. Smith, Sayer, 40, 42; Story on Bailm. § 402, 404.
5 Farebrother v. Ansley, 1 Camp. 343. See also Stephens v. Elwall, 4 M. & S. 259; Perkins v. Smith, Sayer, 40; s. c. 1 Wils. 328; M'Combie v. Davies, 6 East, 538.
6 Pow v. Davis, 1 Best & S. 220 (1861). See also Collen v. Wright, 8 El. & B. 647; Taylor v. Shelton, 30 Conn. 128; Hegeman v. Johnson, 35 Barb. 200.
7 Stone v. Cartwright, 6 T. R. 411; Hills v. Ross, 3 Dall. 331; Nicholson v. Mounsey, 15 East, 383; Paley on Agency, by Lloyd, 402; Denison v. Seymour, 9 Wend. 9, 12; Bush v. Steinman, 1 Bos. & Pul. 404; Story on Agency, § 313.
§ 257. Where the agent, in the due exercise of his powers, makes a contract as agent, taking no personal responsibility, the action must be brought against the principal. So, also, if money be paid over to a known agent for the use of his principal, an action for money had and received cannot be maintained against him, but must be brought against the principal,4 the agent being only responsible for breach of his actual authority to his principal.5 But if the payment to the agent be utterly void, so that he is not accountable to his principal, or if the contract be voidable for fraud on the part of the principal,6 he will be liable to the parties paying him,7 unless he have actually paid over the money to his principal.8 Thus, if money be paid by mistake to an agent, he will be liable to a personal action therefor, so long as it remains in his hands, although his principal be credited therefor on account forwarded to him.1 So where the plaintiff bought cotton of the defendant, each acting for an undisclosed principal, and a mistake was made in the weight of the cotton, whereby the plaintiff overpaid the defendant; and where, before the mistake was discovered, the defendant had allowed the money so received to be settled in account with his principal, to whom he had made advances, and who still owed him a large balance, the plaintiff was allowed to recover from the defendant the sum overpaid. The court said that the case did not fall within the rule by which an agent was relieved from personal responsibility in case of a bond fide payment of money received by him on account of his principal.2 But if the money be actually paid over to the principal, the agent will not be liable,3 unless he have been guilty of fraud or of improper conduct.4 But this rule only applies to cases where money is paid to an agent by a third person for the use of the principal; and when money is paid to the agent by the principal for the use of a third person, no action lies against the agent by such third person, but only by the principal.5
1 Rowning v. Goodchild, 3 Wils. 443; s. c. 5 Burr. 2718; 2 W. Bl. 906; Whitfield v. Le Despencer, Cowp. 765; Seymour v. Van Slyck, 8 Wend. 403, 422; U. S. v. Kirkpatrick, 9 Wheat. 720, 735.
2 Schieffelin v. Harvey, 6 Johns. 170, 176; Morse v. Slue, 1 Vent. 238; s. c. 1 Mod. 85; Abbott on Shipping, pt. 3, ch. 3, § 3 (ed. 1829); Dunlop v. Munroe, 7 Cranch, 242; Story on Agency, § 314.
3 Bowcher v. Noidstrom, 1 Taunt. 568. See also Nicholson v. Mounsey, 15 East, 384.
4 Staplefield v. Yewd, Bull. N. P. 133, cited 4 Burr. 1986; Dixon v. Hamond, 2 B. & Al. 313; Edden v. Read, 3 Camp. 339; Sims v. Brittain, 4 B. & Ad. 375; Shand v. Grant, 15 C. B.'(n. s.) 324 (1863); Holland v. Russell, 1 Best & S. 424 (1861). See Kelly v. Solari, 9 M. & W. 54; Newall v. Tomlinson, Law R. 6 C. P. 405 (1871).
5 Williams v. Everett, 14 East, 597.
6 Shipherd v. Underwood, 55 111. 475 (1870).
7 Buller v. Harrison, 2 Cowp. 565; Bishop v. Eagle, 10 Mod. 23; Cox v. Prentice, 3 M. & S. 344; Hearsey v. Pruyn, 7 Johns. 181; Bamford v. Shuttleworth, 11 Ad. & E. 926; Colvin v. Holbrook, 2 Comst. 126; Costi-gan v. Newland, 12 Barb. 456. But see Elliot v. Swartwout, 10 Peters, 137.
8 Horsfall v. Handley, 2 Moore, 5; s. c. 8 Taunt. 136; White v. Bart-lett, 9 Bing. 378; Tope v. Hockin, 7 B. & C. Ill; Coles v. Wright, 4 Taunt. 198; Whitbread v. Brooksbank, 1 Cowp. 69.