Green, the plaintiffs' intestate, though he were a lunatic at the time: Brooks v. Brooks, 3 Ired. L. 389. We are aware that it is said in Stock on Non Compotes, 211, that in England the committee of a lunatic's estate can neither bring nor defend actions or suits on behalf of the non compos mentis without previously obtaining the permission of the court to do so." See Largent v. Berry, 3 Jones L. 531. How the objection is to be made, or whether it can be made at all, by the other party on the trial, it is unnecessary for us to inquire. Here the plaintiff died, and his administrators are made parties, and they can undoubtedly recover any property to which their intestate was legally entitled, and which is unlawfully detained from them. There is no error, and the judgment must be affirmed. Judgment affirmed

DELIVERY OF DEED, WHAT CONSTITUTES.-Actual delivery into hands of grantee not necessary in order to clothe him with the legal title: Shirley v. Ayres, 45 Am. Dec. 546; Lady Superior v. McNamara, 49 Id. 184. Assent of grantee a sufficient delivery: Boody v. Davis, 51 Id. 210; Hoffman v. Mackall, 64 Id. 637, and citations in notes to these cases.

SUBSEQUENT PURCHASER WITH NOTICE OF PRIOR CONVEYANCE cannot avoid it, under the statute to prevent frauds and fraudulent conveyances, on the ground that it was intended to defraud creditors: Fowler v. Stoneum, 62 Am. Dec. 490, and note 506.

CREDITOR, IN ORDER TO REACH PROPERTY CONVEYED BY FRAUDULENT DEED OF TRUST void as to him, must get possession of the property by obtaining judgment, and having it seized under execution: Grimsley v. Hooker, ante, p. 227, citing the principal case; and see also note thereto collecting prior cases. The principal case is cited to this point in Moore v. Ragland, 74 N. C. 347; and in Bynum v. Miller, 86 Id. 564, it is cited to this and the point immediately preceding it, supra.

WHEN ADMINISTRATOR MUST SUE IN HIS OWN NAME: Sasscer v. Walker's Ex'rs, 25 Am. Dec. 272, and cases collected in note thereto.

DAVIS v. BURNETT.

[4 JONES'S LAW, 71.]

ACCEPTANCE BY TWO JOINT OWNERS OF PERSONAL PROPERTY OF THEIR SHARE OF PROCEEDS OF SALE is sufficient to constitute third joint owner agent to sell.

AGENT TO SELL PERSONAL PROPERTY HAS POWER TO BIND HIS PRINCIPAL by warranty of soundness.

AGENT IS NOT PERSONALLY LIABLE WHO AT TIME OF MAKING CONTRACT DISCLOSES HIS PRINCIPAL; but where he binds himself, he is answerable, and if made to suffer in damages arising out of the contract, he is entitled to compensation from his principal.

ASSUMPSIT. Judgment for plaintiff. Defendant appealed. The opinion states the facts.

Donnell, for the plaintiff.

Winston, jun., and Rodman, for the defendant.

By Court, NASH, C. J. Three questions present themselves in this case: 1. Was the plaintiff the agent of the defendant in selling his portion of the corn? 2. Had he the power to warrant the soundness of the corn, and thereby bind the defendant? 3. Can he maintain the action upon either of the counts in his declaration?

As to the first: the plaintiff and defendant and one Taylor were the joint owners of a parcel of corn lying in bulk in a crib, each owning one third. The plaintiff sold the whole to one Clements at two dollars per barrel, to be delivered on board of a vessel, when called for, in good merchantable order. Clements subsequently informed the defendant that he had purchased the corn at the price stated, but did not inform him of any other terms. The defendant replied, "It is right." Clements subsequently paid the plaintiff his one third of the price of the corn, and the defendant his third. These facts sufficiently show that Davis was the agent of the defendant to do this particular thing—that is, to sell his portion of the corn, unrestricted by any special instructions.

2. An agent to sell personal property has, by law, power to bind his principal by a warranty of soundness: Brown on Actions, 174; Paley on Agency, 210. The employment gave the power: Helyear v. Hawke, 5 Esp. N. P. Cas. 75; Hunter v. Jameson, 6 Ired. L. 252. The contract between plaintiff and Clements was for the corn to be delivered on board of the vessel, when called for, in good merchantable order. This contract was in writing, and signed by the plaintiff alone. When Waldo & Yarrell, who had purchased from Clements his contract, applied for the corn, they refused to receive it, upon the ground that it was not such an article as they had bargained for, not being in good merchantable order, unless the plaintiff would make it merchantable in Norfolk. This he agreed to do. At Norfolk it was shown that the corn was not merchantable, and the plaintiff paid to Waldo & Yarrell the difference between the corn as it was and what it was agreed it should be. Was the defendant bound by the contract he made with the purchaser? The authorities above cited show that he was, to the amount of his interest in the corn. On this point our attention was called to

the cases of Meadows v. Smith, 12 Id. 18; McCall v. Claylon, Busb. L. 422. Both these cases differ materially from this. In neither of these did the agent have any interest in the subject-matter of the agency. In the first, the contract was made for the building of a flat for Smith, the defendant. In the other, the note or due-bill, the foundation of the action, was signed George Clayton, "agent for Davidson's River Navigation Company." In both these cases the court say that by their respective contracts, the agents were not bound, but that their respective principals were, and that their payments were officious acts, and they could not recover from their respective defendants the money so paid without their request. Can the money paid by the plaintiff be considered officious? The corn sold was the joint property of the plaintiff and of the defendant and Taylor, lying in bulk, undivided; and the plaintiff was the agent of the two latter to sell their shares, and the whole was sold as sound. When it was ascertained that the corn was not merchantable, the purchasers might have refused to receive it, and were induced to do so only on the condition that the plaintiff would guarantee its merchantable quality at Norfolk. This he did. As to his third, he acted for himself; as to the other two thirds, as the agent of the defendant and Taylor. But the contract was one. He could not guarantee his third without guaranteeing the whole, for the corn was undivided. By his contract he bound himself for the whole, and was answerable for the whole. Although the purchasers knew that two thirds of the corn belonged to Burnett and Taylor, they also knew that one third belonged to the plaintiff.

It is in general true, that where an agent, at the time of making a contract, discloses his principal, he is not personally answerable; but where he binds himself, he is answerable; and if made to suffer in damages arising out of the contract, he is entited to compensation from his principal: Hunter v. Jameson, 6 Ired. L. 252.

We are of opinion, for the reasons above stated. that the plaintiff can maintain his action.

Judgment affirmed.

RECEIVING CONSIDERATION, WHEN NOT RATIFICATION OF AGENT'S ACTS: Pa. etc. Nav. Co. v. Dandridge, 29 Am. Dec. 543; and ratification of agent's act will have the same effect as an original authority: Clealand v. Walker, 46 Id. 238; Planters' Bank v. Sharp, 43 Id. 470; Despatch Line v. Bellamy Mfg. Co., 37 Id. 203; McMahan v. McMahan, 53 Id. 481, and notes to cases collecting prior citations.

AGENT BINDS HIS PRINCIPAL BY HIS ACTS within the ordinary scope of his authority, unless specifically limited and restricted: Jeffrey v. Bigelow, 28 Am. Dec. 476; McClure v. Richardson, 33 Id. 105; Chouteaux v. Leech, 57 Id. 602, and citations in notes to these cases.

NEAL v. WILCOX.

[4 JONES'S LAW, 146.]

IN ACTION ON CASE ON "CUSTOM OF THE LAND," INNKEEPERS ARE TREATED AS INSURERS, and are liable without proof of negligence for the loss of goods or animals left in their charge by guests.

ACTION ON CASE ON CUSTOM IS RESTRICTEd to Guests, AS DISTINGUISHED FROM BOARDERS who sojourn at an inn on special contract.

IN ACTION ON CASE ON CUSTOM, LIABILITY OF INNKEEPERS IS RESTRICTED TO SUCH GOODS OR ANIMALS as the guest has with him for the purposes of the journey.

CASE for the loss of a mule. Plaintiffs were engaged in the business of buying and selling horses and mules, and defendant was the keeper of a tavern. Neal, one of the plaintiffs, was boarding at defendant's tavern. A drove of mules belonging to plaintiffs were put in a field adjoining defendant's stable-lot, but were fed by plaintiffs, assisted by defendant's servants. Neal being temporarily absent, defendant's boy undertook to take the mule in controversy to water, when he broke away from the boy and was lost. It was not shown at the trial that proper diligence had not been used to recover the mule. The court charged the jury that if they believed from the foregoing facts that Wilcox held himself out as an innkeeper, that Neal was his guest, and that the mule at the time was in his keeping, and escaped, Wilcox was liable for the loss; but if they believed that Neal was a boarder, was himself the keeper of the mule, and only had the privilege of Wilcox's lot, then he, Wilcox, was not liable. Verdict for defendant; judgment accordingly. Plaintiff's appealed.

Donnell, for the plaintiff.

No counsel appeared for the defendant.

By Court, PEARSON, J. This is an action on the case, on the "custom of the land," against the defendant as an innkeeper, for the loss of a mule. In this action, on the ground of public policy, common carriers and innkeepers are treated as insurers, and are liable, except "for the acts of God and the enemies of the state," without proof of negligence. In which respect it

differs from an ordinary action on the case against a bailee. In our case, there being no proof of negligence, the plaintiff properly declared "on the custom." If he could have made this proof, it would have been most proper to declare on the special case; for a recovery in that action may be made against an innkeeper who is guilty of negligence, in many instances, where he would not be liable in "case" on the custom; for instance, one takes boarding at an inn on a special contract; his goods are lost, the innkeeper is not liable "on the custom," but is liable in a special action on the case, if negligence be proved. So if one leave a trunk or carriage to be kept by an innkeeper, or if one deliver a flock of sheep, or a drove of mules, or horses, to an innkeeper to be pastured, he is only liable as bailee on proof of negligence.

The ground of public policy on which an action on the case "on the custom" is given against innkeepers is, that persons who are traveling through the country are under a necessity of putting up at inns for entertainment-transeuntes causa hospitandi (from which last word they are called "guests "), without knowing anything about the character of the house; for which reason the law gives an assurance of the safety of their property; that is, the goods and animals (bona et catalla) which they have with them for the purposes of their journey.

The reason restricts this action to guests as distinguished from boarders, who sojourn at an inn on a special contract: 3 Bac. Abr. 666, tit. Inns. It is sometimes difficult to draw the line between guests and boarders. They frequently run into each other like light and shade. So the line between a common carrier and a bailee to carry is sometimes scarcely perceptible; but the law makes the distinction, and it is the province of the judge to draw the line. A transient customer at an inn, although he be not a traveler or stranger, is considered as a guest; a lodger, who sojourns at an inn, and takes a room for a specified time, and pays for his lodging on a special agreement, as by the month or week, is a boarder: Bennett v. Mellor, 5 T. R. 273.

So the reason restricts the action to one who comes for entertainment-causa hospitandi. If one peddling merchandise puts. up at an inn, and besides his sleeping apartment takes a separate room in which to show and sell articles-clocks and watches, for instance these articles are not within the protection of the rule: Burgess v. Clements, 4 Mau. & Sel. 306. So if one having a drove of horses or hogs to sell puts up at an inn,