But it is held that the provision of the constitution of the United States, prohibiting the States from passing laws impairing the obligations of contracts, prevents a discharge under the insolvent laws where the contract is made from operating as a discharge, unless made between citizens of that State;60 unless the foreign creditor should become a party to the bankrupt proceedings, prove his claim, and receive his share of the assets. 61

But this doctrine is not applicable to those contracts and discharges made in a foreign country; such contracts and discharges are governed by the general principles of international law. 62

It is a general rule that the discharge of a contract by the law of a place where it was not made, or to be performed, will not be a discharge of it in any other country. This doctrine is well established both in the United States 63 and England. But it seems that where a promissory note is executed in one

64

Dec. 700; Shaw v. Robins, 12 Wheat. (U.S.) 369, note; Clay v. Smith, 3 Pet. (U. S.) 411; Boyle v. Zacharie, 6 Pet. (U. S.) 635; Suydam v. Broadnaz, 14 Pet. (U. S.) 67; Cook v. Moffatt, 5 How. (U. S.) 295; Brigham v. Henderson, 1 Cush. (Mass.) 434; s. C., 48 Am. Dec. 610; Springer v. Foster, 2 Story C. C. 387; Braynard v. Marshall, 8 Pick. (Mass.) 194; Betts v. Bagley, 12 Pick. (Mass.) 572; Agnew v. Platt, 15 Pick. (Mass.) 417: Savoye v. Marsh, 10 Metc. (Mass.) 594; s. C., 43 Am. Dec. 451; Fiske v. Foster, 10 Metc. (Mass.) 597; Woodbridge v. Allen, 12 Metc. (Mass.) 470; Ilsley v. Merriam, 7 Cush. (Mass.) 242; 8. C., 44 Am. Dec. 721. Clark v. Hatch, 7 Cush. (Mass.) 455; Scribner v. Fisher, 2 Gray (Mass.), 43; Potter v. Brown, 5 East, 131. See also Sherrill v. Hopkins, 1 Cow. (N. Y.) 103, 108.

60 Donnelly v. Corbett, 7 N. Y. 500; Hicks v. Hotchkiss, 7 Johns. Ch. 297; s. C., 11 Am. Dec. 472; Van Hoox v. Whitlock, 26 Wend. (N. Y.) 43; Soule v. Chase, 39 N. Y. 342; Savoye v. Marsh, 10 Metc. (Mass.) 594; 8. C., 43 Am. Dec. 451; Agnew v. Platt, 15 Pick. (Mass.) 417; Producers' Bank v. Farnum, 5 Allen (Mass.), 10; Poe v. Duck, 5 Md. 1; Boyle v. Zacharie, 6 Pet. (U. S.) 348; Ogden v. Saunders, 12 Wheat. 358, 369.

61 Soule v. Chase, 39 N. Y. 342; Clay v. Smith, 3 Pet. (U. S.) 411.

62 See Peck v. Hibbard, 26 Vt. 704; 8. C., 62 Am. Dec. 603; Very v. McHenry, 29 Me. 214; Sturges v. Crowninshield, 4 Wheat. (U. S.) 122; McMillan v. McNeill, 4 Wheat. (U. S.) 209; Ogden v. Saunders, 12 Wheat. (U. S.) 358; Baldwin v. Hale, 1 Wall. (68 U. S.) 223, bk. 17 L. ed. 531.

63 Smith v. Smith, 2 Johns. 235; s. c., 3 Am. Dec. 410; Van Raugh v. Van Aɩsdaln, 3 Caine (N. Y.), 154; 8. C., 2 Am. Dec. 259; Frey v. Kirk. 4 Gill & J. (Md.) 509; s. c., 23 Am. Dec. 581; Ellicott v. Early, 3 Gill (Md.) 439; Bradford v. Farrand, 13 Mass. 18; Green v. Sarmiento, Pet. C. C. 74; Le Roy v. Crowninshield, 2 Mason C. C. 151; Aymar v. Sheldon, 12 Wend. (N. Y.) 439; Braynard v. Marshall, 8 Pick. (Mass.) 194; Ogden v. Saunders, 12 Wheat. (U. S.) 358, 362, 364; Northern Bank v. Squire, 8 La. Ann. 318; s. c., 58 Am.

State and indorsed in another State to a citizen thereof, it is governed by the law of the State where the note was made, and a discharge in bankruptcy in that State will be a discharge of the note.65 Yet the formalities of the indorsement necessary to charge the indorser must be such as are required by the law of the place of indorsement, that being the indorser's contract.66

c. Statute of Limitations.-Statutes of limitation are not questions upon the merits, but simply questions affecting the remedy.67 Therefore all suits must be brought within the time prescribed by the lex fori,68 although

Dec. 682; Peck v. Hibbard, 26 Vt. 702; s. c. 63 Am. Dec. 605.

64 Lewis v. Owen, 4 Barn & Ald. 654; Phillips v. Allan, 8 Barn. & Cress. 479; Quelin v. Moisson, 1 Knapp, 265, note; Rose v. McLeod, 4 Shaw & D. 311; Smith v. Buchanan, 1 East, 6, 11; 2 Kent Com. 392, 893, 458, 459; 2 Bell Com. (4th ed.) § 1267, pp. 691, 695; 3 Burge Com. on Col. & For. Law, pt. 2, ch. 22, pp. 924, 929. 65 See Blanchard v. Russell, 13 Mass. 1, 11, 12; 8. C., 7 Am. Dec. 106; Prentiss v. Savage 13 Mass. 20, 23, 24; Ory v. Winter, 16 Martin (La.), 277; Sherrill v. Hopkins, 1 Cow. (N. Y.) 103; Ogden v. Saunders, 12 Wheat. 360; Slocum v. Pomeroy, 6 Cr. (U. S.) 221; Potter v. Brown, 5 East, 124, 130; De la Chaumette v. Bank of England, Barn. & Cress. 208; s. c., 2 Barn. & Ad. 385.

66 See Chatham Bank v. Allison, 15 Iowa, 357; Short v. Trabue, 4 Met. (Ky.) 299; Artisans' Bank v. Planters' Bank, 41 Barb. (N. Y.) 599; Trabue v. Short, 18 La. Ann. 257; Murson v. Lake, 4 How. (U. S.) 262.

67 De Couche v. Savatier, 3 Johns. Ch.(N. Y.) 190; 8. c., 8 Am. Dec. 478; Lincoln v. Battlle, 6 Wend. (N. Y.) 475; Andrews v. Herriot, 4 Cow. (N. Y.) 528, note 10; Gulick v. Loder, 2 Gr. (N. J.) 572; Van Reimsdyke v. Kane, 1 Gal. C. C. 371; Le Roy v. Crowninshield, 2 Mason C. C. 151; Higgins v. Scott, 2 Barn. & Ad. 413; British Linen Co. v. Drummond, 10 Barn. & Cress. 903; De la Vega v. Vianna, 1 Barn. & Ad. 284; Ferguson v. Fyffe, 8 Clark & Finn. 121, 140. Continental jurists maintain the same doctrine. See 1 Boullenois, obs. 23, p. 530; J. Voet, ad. Pand. lib. 5, tit. 1, § 53, p. 328. The statute of frauds is said to be like the statute of limitations, affecting the remedy merely. See Leroux v. Brown, 12 C. B. 801; s. C., 14 Eng. L. & Eq. 247.

68 Medbury v. Hopkins, 3 Conn. 472; Woodbridge v. Wright, 3 Conn. 523; De Couche v. Savatier, 3 Johns. Ch. 190; s. c., 8 Am. Dec. 478; Lincoln v. Battelle, 6 Wend. (N. Y.) 475; Andrews v. Herriot, 4 Cow. (N. Y.) 528, note 10; Brown v. Stone, 4 La. Ann. 235; Young v. Crossgrove, 4 La Ann. 233; Bulger v. Roche, 11 Pick. (Mass.) 36; s. c., 22 Am. Dec. 350; Van Reimsdyke v. Kane, 1 Gall. C. C. 371; Le Roy v. Crowninshield, 2 Mason, C. C. 151, 174: Carpenter v. Minturn, 6 Lans. (N. Y.) 56; Nicolls v. Rodgers, 2 Paine C. C. 4, 37; Edgberte v. Dibble, 3 McL. C. C. 86; Jones v. Hays, 4 McL. C. C. 521; Nash v. Tupper, 1 Cain. (N. Y.) 402; 8. C., 2 Am. Dec. 197; Carpenter v. Wells, 21 Barb. (N. Y.) 593; Murray v. Fisher, 5 Lans. (N. Y.) 98; Ruggler v. Keeler, 3 Johns. (N. Y.) 263; Gans v. Frank, 36 Barb. (N. Y.) 320; Toulandon v. Lachenmeyer, 1 Sweeny, 45; 8. C., 37 How. (N. Y.) Pr. 145; McCluny

the law of the country where the contract entered into may allow a much longer time in which to bring an action.69 And it has been held that where one State or country declares that all rights to debts due more than a prescribed number of years shall be deemed to be extinguished, or that all titles to real and personal property not pursued within a specified time shall be deemed to fix and rest in the adverse possessor, such laws of limitation will be a bar to an action in another State where a greater length of time is allowed, or there is no prescription at all;70 and where

v. Silliman, 3 Pet. (U. S.) 270; Hawkins v. Barney, 5 Pet. (U.S.) 457; Bank of United States v. Donally, 8 Pet. (U.S.) 361; McElmoyle v. Cohen, 13 Pet. (U. S.) 812; Le Roy v. Crowninshield, 2 Mason C. C. 151; Nicolls v. Rogers, 2 Paine C. C. 437; Townsend v. Jemison, 9 How. (U. S.) 407; Bacon v. Rives, 106 U.S. 99; bk. 27 L. ed. 69; s. C., 1 S. C. Rep. 3; Sturges v. Crowninshield, 4 Wheat. 122, 200, 207; Louisville, etc. Ry. Co. v. Letson, 2 How. (U. S.) 497; Ruckmaboye v. Mottichund, 8 Moore P. C. 36; British Linen Co. v. Drummond, 10 Barn. & Cress. 903; De la Vega v. Vianna, 1 Barn. & Ad. 284; Huber v. Steiner, 2 Bing. (N. C.) 202, 209, 212; Don v. Lippmann, 5 Clark & Finn. 1, 13, 17. Although the time within which an action may be brought relates generally to the remedy, and must be determined by the law of the forum, yet when a statute gives a right unknown. to common law, and limits the time within which an action shall be brought to assert it, the limitation will be enforced by the courts of any State wherein the plaintiff may sue; and hence where a statute of the province of Ontario gave compensation for death caused by the wrongful act of another, and further provided that action should be brought within twelve months after death, it was held that this limitation was also applicable to actions brought in the State of Michigan, under this statute. Boyd v. Clark, 8 Fed. Rep. 849; s. c., 24 Alb. L. J. 508, 13 Rep. 40.

69 See Paine v. Drew, 44 N. H. 396; Ruckmaboye v. Mottichund, 8 Moore P. C. 36. The statute of limitation of another State, where the contract was made, cannot be pleaded in bar: Townsend v. Jemison, 9 How. (U. S.) 407; Le Roy v. Crowninshield, 2 Mason 151; Egberts v. Dibble, 3 McL. C. C. 86; Stillman v. White Rock Manufacturing Co., 3 Woodb. & M. C. C. 539: Contra: Gilpin v. Plummer, 2 Cr. C. C. 54; Loveland v. Davidson, 3 Clark (Pa.), 377; Hoag v. Dessan, 1 Pitts. (Pa.) 390. And where a negotiable promissory note made in New Orleans secured by mortgage on real estate in Mississippi, the maker being a citizen of Arkansas, and the promisee being a citizen of Louisiana, and no place of payment being named in the note, is subject to the limitations of actions prescribed by the statute of Mississippi as the law of the former, when suit is brought upon it in Mississippi: Walsh v. Mayer, 111 U. S. 31, bk. 28 L. ed. 338.

70 See Brent v. Chapman, 5 Cr. (U. S.) 358; Shelby v. Guy, 11 Wheat. 361, 371, 372; Beckford v. Wade, 17 Ves. 88; Newby v. Blaky, 3 Hen. & Mun. 57; Huber v. Steiner, 2 Bing. (N. C.) 201, 211; Don v. Lippmann, 5 Clark & Finn. 1, 2, 3. But see, Dudley v. Warde, 1 Amb. 113.

7 Price v. Yates, 19 Alb. L. J. 295; s. C., sub nom. Price v. Gates, 25 Int. Rev. Rec. 113.

the State and the federal courts have concurrent jurisdiction, a State statute of limitation may be pleaded as effectively in a federal court as it could be in a State court, and in such cases the federal court will follow the decision of local State tribunals, and will administer the same justice which the State court would administer between the same parties." And where the highest courts of a State have settled the construction of their statute of limitations differently from what the Supreme Court of the United States in previous cases had considered to be their rule, the United States Supreme Court will thereafter conform its adjudications to the latter exposition of the local law.72

According to the common law doctrine, the prescription of the lex fori must prevail in all cases of personal actions; but in all cases of real actions, or actions touching or savoring of the realty, the prescription of the lex rei sitae must prevail;78 but it has been observed that as at common law no actions of this kind can be brought ex directo, except in the place rei sitæ, it necessarily follows that the prescription of the lex ori governs as a universal rule applicable alike to all cases.14

The question at what precise time a suit must be deemed to have been brought or commenced, arising under an act of congress limiting the time for bringing or commencing an action, must be determined by the law of the

72 Green v. Neal, 6 Pet. (U. S.) 291. Where the decisions of the supreme court of a State, and its status of limitations do not protect tax-deeds therein, they will be followed in the United States circuit court. Parks v. Watson, 20 Fed. Rep. 764. It has been said that § 34 of the judiciary act of 1789, now Rev. Stat. 721, is the only general statute of limitations known in federal litigations, Sayles v. Richmond, Fredericksburg, etc. R. R. Co, 4 Barn. & Pat., Cas. 239. Yet it has been held that, in providing that the laws of the several States shall be the rules of decision in trial at common law in courts of the United States, except where treaties or acts of congress otherwise provide, congress virtually adopted the statute of limitations of each State as the limitation to actions brought in the United States courts held in that State: Sayles v. Oregon Cen. R. R. Co., 8 Rep. 424; s. c., 6 Sawy. C. C. 31.

73 Cargile v. Harrison, 9 B. Mon. (Ky.) 518.

74 See Bulger v. Roche, 11 Pick. (Mass.) 36; 8. C., 22 Am. Dec. 350; De Couche v. Savatier, 3 Johns. Ch. (N. Y.) 199, 218; s. c., 8 Am. Dec. 478; Lincoln v. Battelle,

Wend. (N. Y.) 475; Broh v. Jenkins, 9 Martin (La.), 526; 8. C., 13 Am. Dec. 320; British Linen Co. v. Drummond, 10 Barn. & Cress. 903; Huber v. Steiner, 2 Bing. (N. C.) 202, 209, 216; Don v. Lippmann, 5 Clark & Finn. 1, 13, 17; De la Vega v. Vianna, 1 Barn. & Ad. 284.

State in which the action is pending.75 It is also held that the statute of limitations, or prescriptions of the lex fori, is a good defense or bar to a suit brought there to enforce a foreign judgment.76 Yet it has been held that when a contract is made between residents of another State, the statute of limitations of such other State cannot be pleaded to a suit brought in New York, though the parties continued to reside there until the bar was complete."

Where the laws of a State provide that when a cause of action has arisen in a State or territory out of that State, or in a foreign country, and by the laws thereof an action cannot be maintained by reason of the lapse of time, an action thereon shall not be maintained in that State, the removal of the debtor into such State after resident in another State sufficiently long to avail himself of the bar of the statute of that State, will not revive the cause of action in the State into which he removes. 78 Thus, under 2 Indiana Revised Statute (1852), 77, providing that where a cause has been fully barred by the laws of a place where the defendant resided, such bar will be effective in Indiana. A suit on an administrator's bond, executed in Maryland, cannot be maintained in Indiana after the expiration of the time allowed by the laws of Maryland in which to bring a suit on such a bond, although before the expiration of such time the defendant has removed to Indiana.79 JAMES M. Kerr.

75 Goldenberg v. Murphy, 108 U. S. 162, bk. 27 L. ed. 686; s. c., 2 S. C. Rep. 388. The decision of the New York court of appeals, Carr v. Thompson, 87 N. Y. 160, that under Code of Civil Proceedings, § 382, the time for suing to open an account runs from the date when the account was settled, not from the discovery of the facts warranting the action has been held to be obligatory on the circuit court of the United States: Kirby v. Lakeshore & M. S. R. Co., 14 Fed. Rep. 261; 8. C., 14 Reporter 739.

76 See McElmoyle v. Cohen, 14 Pet. (U. S.) 312, 327, 328; Townsend v. Jemison, 9 How. (U. S.) 419; Don v. Lippmann, 5 Clark & Finn. 1, 19, 21. Thus the statute of limitations of Georgia can be pleaded to an action in that State founded upon a judgment rendered in the State court of the State South Carolina: McElmoyle v. Cohen, 13 Pet. (U. S.) 312.

77 Power v. Hathaway, 43 Barb. (N. Y.) 214.

78 Osgood v. Artt, 11 Biss. C. C. 160; s. c., 10 Fed. Rep. 365.

79 State v. Todd, 1 Biss. C. C. 69.

INNKEEPER'S LIEN-PRINCIPAL AND AGENT COMMERCIAL TRAVELER-INSTRUCTIONS TO JURY.

COVINGTON V. NEWBERGER.

Supreme Court of North Carolina, April 16, 1888.

1. Innkeeper's Lien- Principal and Agent-Commercial Traveler.-A merchant is not responsible for a hotel bill covering several months, contracted by his commercial traveler without notice, it being the custom of such persons to pay cash.

2. Same-Property of Third Persons in Hands of Guest-Samples.—An innkeeper has no lien upon the property of third persons in the hands of his guest when he knows the ownership thereof is not in such guest.

3. Appeal-Questions in Record.—A court can consider upon an appeal only the questions presented in the record.

4. Instructions to Jury.-A judge should direct a verdict against the party upon whom the burden of proof rests, if there is not sufficient evidence to warrant an inference of any fact in issue.

DAVIS, J., delivered the opinion of the court: Civil action originally commenced before a justice of the peace, and carried by appeal to the superior court of Anson county, and tried before Clark, J., at May term, 1887, of said court. At the time of issuing the summons, and as ancillary to the action, a warrant of attachment was issued, under which certain trunks and packages of samples in possession of Lindsey Davis were seized and afterwards replevied by the defendant. The pleadings were oral. During the years 1881 and 1882 the plaintiff was the proprietor of a hotel in the town of Wadesboro, and he alleges that during that time the defendant became indebted to him in the sum of $47 for the board and lodging of his agent Lindsey Davis. The defendant answered, denying the debt, and denying that he owed the plaintiff anything. The plaintiff, in his own behalf, testified in substance that "Davis was traveling over the country as the salesman of the defendant, soliciting orders, and selling goods for him;" and was so engaged at the time the alleged debt was contracted. Witness knew that Davis was the agent of defendant, "and on every occasion, when he stopped with witness, he was engaged in prosecuting the defendant's business. Witness extended credit to defendant in the first instance, and thought that he was responsible for his agent's board bill. It was the habit

of said agent to come to Wadesboro several times during the year, and, while making plaintiff's hotel headquarters, to visit the surrounding country by private conveyance, returnnig generally to Wadesboro, from time to time, to receive communications and orders from his house, and to send orders for goods which he had sold. Witness received payments from time to time from said agent on the account, and the sum of forty-seven dollars is the balance due after deducting all pay

ments." Cross-examined: "Said Davis always registered on the hotel register as 'Lindsey Davis,' without making any reference to the defendant. Said Davis was carrying with him large trunks and cases of samples of clothing, all of which were brought to plaintiff's hotel, and there kept and exhibited. Davis was a transient patron at plaintiff's hotel. It was the general custom that such patrons were expected to pay cash for their bills, though witness thought there were exceptions. Where the drummer was engaged in 'working up' the surrounding country, he was not expected to settle until he had finished. Some time since the commencement of the action, the witness drew off his account from his hotel register, which is as follows, to-wit:

"Lindsey Davis with M. Newberger:

1881, April 1. To board,

50 8 50 12.00 150

7 50

50

50 850

$39 50

20 00

$19 50 $9.00 1 00

$29 50 8 00

$21 50

2.50 1 50 7 00 11 00

$43 50 3 50

$40 00 4 50 2 60

$47 00

"Which account witness has since kept on a small pocket memorandum. Witness extended the credit, and allowed the account to run because he thought the trunks and cases of samples were liable and responsible for the board bills of Davis, and also because he thought the defendant was liable for the board bills of his said drummer. Witness hever had, at any time prior to the commencement of this action, any conversation or communication with the defendant concerning the account; never notified him that he was extending credit on account of his said drummer; never presented the account to defendant, or made any demand on him before bringing the action.” The plaintiff then put in evidence the return of

the sheriff, indorsed on the warrant of attachment, and the undertaking entered into by the defendant, which showed that the property levied on (the trunks and samples) was the property of the defendant, and claimed by him. George W. Huntley, witness for plaintiff, testified that during the years 1881 and 1882 Davis was traveling as the drummer or agent of the defendant, selling clothing for him. "Witness gave him (Davis) orders for goods. The goods were shipped and received by witness, and witness paid the draft of the defendant for the price of the goods." Dr. Covington also testified that Davis was the traveling salesman of the defendant. The defendant introduced no evidence. The court charged the jury, in substance, as follow, to-wit: "That they must first be satisfied from the evidence that Lindsey Davis was the agent of the defendant, Morris Newberger, and if thery were not so satisfied, they should find the issue in favor of the defendant. But if, from evidence, they were satisfied that Lindsey Davis was the agent of the defendant at the time the account was made, that then the liability of the defendant would depend upon the character of the agency, and whether the agent had authority to bind his principal for his board bill; that plaintiff must satisfy the jury that, by the contract of agency, the agent had such authority from his principal when engaged in the prosecution of the agency; and if the defendant (principal) did authorize his agent to bind him for the price of the agent's board, and the board bill was contracted by the agent in the course of the business, that then the defendant would be liable in this action, and they should find in favor of the plaintiff; that if Lindsey Davis was the drummer of the defendant, and stopped at the hotel of the plaintiff, in the prosecution of his business, as the drummer of defendant, and such stopping and boarding was necessary to the prosecution of the agency, and the jury find from the evidence that the contracting of the board bills was necessary in the prosecution of the work of the agency, the defendant was liable to plaintiff for such of his account as has been proved to the satisfaction of the jury; that the burden was on the plaintiff to satisfy them of the truth of these propositions." The court submitted to the jury the following issue: "Is defendant indebted to plaintiff? If so, how much?" The jury responded, "Yes; forty-seven dollars." The defendant moved for a new trial, for error of the court in refusing instructions asked, in submitting issue to the jury and for error in the charge of the court. Motion overruled. Judgment. Appeal by the defendant to the supreme court.

Upon disagreement of counsel the case, on appeal, was settled by the judge, as appears from the certificate, and the instructions asked for by the defendant, and the refusal of which constitutes one of the grounds of exception, as appears in the statement of the case, do not appear in the record. Counsel for the appellant proposed to show by

affidavits what the instructions, asked for and refused, were; but this court cannot permit the case stated to be varied or amended in any such way, and we can only consider the questions presented in the record.

The plaintiff was a hotel keeper in the town of Wadesboro. One Lindsey Davis was the traveling salesman, or "drummer," for the defendant, Newberger, and in the course of his business as such, "was a transient patron at plaintiff's hotel," at divers time, from April 1, 1881, to November 27, 1882, generally leaving without paying his board, but making occasional payments, as appears by the credits on the account. It was during this time, extending over a period of nearly 12 months, that the crediit was given and the debt incurred, which it was sought by this action to recover. There is no evidence of any express agreement or promise on the part of the defendant to pay the debt, and there is no evidence that he knew of its existence till this action was instituted. On the contrary, the plaintiff himself testifies (and this was the only evidence on this point) that he never had, at any time prior to the commencement of this action, any conversation or communication with the defendant concerning the account; never notified him that he was extending credit on account of his said drummer; never presented the account to defendant, or made any demand on him before bringing the action. Is there any evidence of an implied promise on the part of the defendant to pay this debt? Is there any evidence of authority from him to the plaintiff to give this extended credit for the board of the "drummer?" Is there any evidence from which it might be reasonably inferred or implied that he would be liable therefor? Is there any evidence whatever that the agent Davis "had authority to bind his principal (the defendant) for his board bill," extending over a period of many months? The plaintiff says that there was some evidence in the fact that the de

fendant Newberger sent Davis as his agent through the country to sell goods for him, and that this carried with it the incidental or implied authority in Davis to bind the principal for liabilities incurred by the agent, and rendered necessary in the discharge of the duties pertaining to his agency, and for this he refers us to Story, Ag. §§ 73, 78, 98, 119, 127; Huntley v. Mathias, 90 N. C. 101; Bentley v. Doggett, 37 Am. Rep. 827. These authorities go to the full extent of declaring that the principal is liable for any necessary expenses or for anything that it may be necessary for the agent to do in and about the business of his agency; and when the principal sends the agent out, he sends him with the implied authority to do what is necessary and proper in order to transact the business for which he was employed. The principal is bound, in such cases, by whatever the agent may do within the scope of his authority. Conceding this doctrine as well settled, can it be reasonably assumed that it is within the scope of the agent's authority to make

debts, and charge his principle therewith, as is done in this case? He was employed to sell goods, and it may be all reasonable and necessary expenses (whether he is furnished with the money by his principal to pay them are not) as he travels through the country may be an implied charge against his principal as a necessary incident to the business of the agency; but this must be within the limits and subordinate to well-known custom. The plaintiff in this case testifies that "it was the general custom that such patrons (transient patrons) were expected to pay cash for their bills." It is true, he adds that he "thought there were exceptions." There is nothing stated by him to show, nor does he say, that this case is an exception. If he intended to hold the defendant answerable for the board bill of Davis, it was manifestly his duty, in the absence of any agreement, to notify him of failure of Davis "to pay cash," in accordance with custom. Whart. Ag. §§ 134, 137. The long and continued failure of Davis to pay cash, according to the general custom, ought to have put the plaintiff on inquiry, and it is well said by Wharton (section 139): "When there is any good reason to put the third party (the party dealing with the agent) on his inquiry, he is bound to go to the principal for this purpose, or otherwise he will open himself to the charge of collusion with the agent against the principal." But counsel for the plaintiff insists that the innkeeper has a lien even upon the goods of a third person held by a guest, and brought within the inn; and when the defendant replevied the goods, he became liable. The landlord's or innkeeper's lien is well recognized, and the case of Cook v. Kane, 57 Am. Rep. 28, cited by counsel, is authority for the position taken by counsel, but it has the qualification "unless he knew it was not the property of the guest." Assuming that, upon a notification of the failure of the drummer, in the first instance, to pay cash, according to the general custom, the defendant would have been liable for his hotel bill (when the amount of the account was insignificant), and assuming that the plaintiff would then have had a lien upon the trunks and samples in the possession of the drummer to secure the cash then due from his customer, and instead of availing himself of it, had permitted the drummer to carry them away, and extended the credit from time to time, in the manner indicated in the account, and from which, we think, there is no evidence of authority, then he would have had no lien upon the defendant's property for the amount of the unauthorized credit, and the fact that the defendant replevied the goods cannot help the plaintiff. When there is no evidence, or only a scintilla of evidence, or the evidence is not sufficient, in a just and reasonable view of it, to warrant an inference of any fact in issue, the court should not leave the issue to be passed upon by the jury, but should direct a verdict against the party upon whom the burden of proof rests. Brown v. Kinsey, 81 N. C. 245; Best v. Frederick, 84 N. C. 176;