It is a rule of law in respect to all agencies, that where money is paid to one as agent, to which another as principal has color of right, the right of the principal cannot be tried in an action brought by the party paying the money against the agent as for money had and received to the use of such party; but such action should be brought against the principal. (e) 1 * For * 80

(d) The Brig Sarah Ann, 2 Sumner, 206; Hunter v. Parker, 7 M. & W. 322.

(e) Bamford v. Shuttleworth. 11 A. & E. 926; Sadler v. Evans, 4 Burr. 1984; Horsfall v. Handley, 8 Taunt. 136; Costi-gan v. Newland, 12 Barb. 456, Strohecker v. Hoffman, 19 Pa. St. 223. Yet if notice not to pay over has been given, then the agent may be sued. Lord Mansfield, Sadler v. Evans, 4 Burr. 1986; Edwards v. Hodding, 5 Taunt. 815; Hearsey v. Pruyn, 7 Johns. 179; Elliott v. Swartwout, 10 Pet. 137; Bend v. Hoyt, 13 id. 263; La Farge v. Kneeland, 7 Cowen, 456. See Cabot v. Shaw, 148 Mass. 459. See, however, as to the liability of collectors of the customs, Cary v. Curtis, 3 How. 236. - And in some cases it has been held that even without notice, the agent may be held liable for money had and received, if he have not actually paid over the money to the principal, or done something equivalent to it; and the mere entering the amount to the credit of the principal, or making a rest, is not equivalent to payment over. Buller v. Harrison, Cowp. 565; Cox v. Prentice, 3 M. & Sel. 344. But upon these cases Mr. Smith comments as follows: "It will be observed that in neither of these cases could the principal himself ever by possibility have claimed to retain the money for a single instant, had it reached his hands, the payment having been made by the plaintiff under pure mistake of facts, and being void ab initio, as soon as that mistake was discovered, so that the agent would not have been estopped from denying his principal's title to the money, any more than the factor of J. S. of Jamaica, who has received money paid to him under the supposition of his employer being J. S. of Trinidad, would be estopped from retaining that money against his employer, in order to return it to the person who paid it to him. Besides which, in Buller v. Harrison, had a party who deals with an agent (acting as such, and within the scope of his authority) has, in general, no right to separate him from his principal, and hold him liable in his personal capacity. The agent owes an account of his actions to his principal, and that he may be able to render that account, the law, except under special circumstances, refuses to impose upon him a duty to any third party.

1 But if the agent secures money or property by fraud, duress, extortion, or other illegal means, he will be held liable to refund unless the plaintiff is m pari delicto. Snowdon v. Davis, 1 Taunt. 359; Townson v. Wilson, I Cam]). 396; Smith v. Sleap, 12 M. &W. 588; Parker v. Bristol, etc. Ry. 6 Ex. 702, McDonald v. Napier, 14 Ga. 89 , Shipherd v. Underwood, 55 Ill. 475; Richardson v. Kimball, 28 Me. 463; Edgerly v. Whalan, 106 Mass. 307; Ripley v. Gelston, 9 Johns. 201; Seidel v. Peckworth, 10 S. & R. 442; Wright v. Eaton, 7 Wis. 595. (But see Van Buren v. Downing, 41 Wis. 122.)

So if a person paying money to the agent is ignorant that he is acting for another, the agent will be liable to refund even though he has paid the money to his principal or otherwise changed his position. Newall v. Tomlinson, L. R. 6 C. P. 405; Smith v. Kelly, 43 Mich. 390.

We here close all that was proposed to be said of agents as parties to contracts entered into by them in their representative capacity. The relation between agent and principal constitutes itself a distinct contract, and the considerations growing out of it might, in a strictly accurate divison, find a place in that part of this work which treats of the Subject-Matter of contracts. But it has been deemed expedient in this instance, as in some others, to sacrifice logical order to the convenience of the reader; and such observations as seem to be required by the contract of Agency, properly so called, are subjoined in the following section.