Mercer, but was sent to his principal, who was a liquor dealer in the county of Erie. The order was executed by the principal who, in the county of Erie, at his place of business, separated or set apart from his general stock the liquor ordered, and delivered it to a common carrier to be forwarded to its destination in Mercer county. We decided that this was no violation of the law prohibiting sales without license, although neither the defendant, who was a travelling agent, nor his principal held any license for the sale of liquor in Mercer county. This decision was not changed in the least upon a subsequent trial of the same defendant on a different state of facts, as reported in 1 Pennypacker, 471. In the case now under consideration the liquor was sold upon orders sent by mail by the purchasers, living in Mercer county, to the defendant, who is a wholesale liquor dealer in Allegheny county. The goods were set apart at the defendant's place of business in Allegheny county, and were there delivered to a common carrier, consigned to the purchaser at his address in Mercer county, and by the carrier transported to Mercer county, and there delivered to the purchaser, who paid the expense of transportation. Upon these facts alone, the decision of this court in the case of Gurbracht, supra, is directly and distinctly applicable, and requires us to reverse the judgment of the court below, unless there are other facts in the case which distinguish it from that of Garbracht.

It is claimed, and it was so held by the court below, that because the goods were marked "C. O. D." the sale was not complete] until the delivery was made; and as that took place in Mercer county, where the defendant's license was inoperative, he was without license as to such sales, and became subject to the penalty of the criminal law. The argument by which this conclusion was reached was simply that the pay. ment of the price was a condition precedent to the delivery, and hence there was no delivery until payment, and no title passed until delivery. The legal and criminal inference was, the sale was made in Mercer, and not in Allegheny. This reasoning ignores certain facts which require consideration. The orders were sent by the purchasers, in Mercer, by mail, to the seller, in Allegheny, and in the orders the purchasers requested the defendant to send the goods C. O. D. The well-known meaning of such an order is that the price of the goods is to be collected by the carrier at the time of the delivery. The purchaser, for his own convenience, requests the seller to send him the goods with authority in the carrier to receive the money for them. This method of payment is the choice of the purchaser, under such an order; and it is beyond question that, so far as the purchaser is concerned, the carrier is his agent for the receipt and transmission of the money. If the seller accedes to such a request by the purchaser, he certainly authorizes the purchaser to pay the money to the carrier, and the purchaser is relieved of all liabilities to the seller for the price of the goods if he pays the price to the carrier. The liability for the price is transferred from the seller to the carrier; and whether the carrier receives the price or not, at the time of delivery, he is liable to the seller for the price if he does deliver. Substantially therefore if the delivery is made by the carrier, and he chooses to give credit to the purchaser for the payment of the price, the transaction is complete, so far as the seller is concerned, and the purchaser may hold the goods. Of course, if the seller were himself delivering the goods in parcels upon condition that on delivery of the last parcel the price of the whole should be paid, it would be a fraud on the seller if the purchaser, after getting all the parcels, should refuse to perform the condition upon which he obtained them, and in such circumstances the seller would be entitled to receive the goods. This was the case in Henderson v. Lauck, 21 Penn. St. 359. The court below, in that case, expressly

charged that if the seller relied on the promise of the purchaser to pay, and delivered the goods absolutely, the right to the property was changed, although the conditions were never performed; but if he relied, not on the promise, but on actual payment at the delivery of the last load, he might reclaim the goods if the money was not paid. The case at bar is entirely different. So far as the seller is concerned, he is satisfied to take the responsibility of the carrier for the price, in place of that of the seller. He authorizes the purchaser absolutely to pay the price to the carrier; and if he does so, undoubtedly the purchaser is relieved of all responsibility for the price, whether the carrier ever pays it to the seller or not. But the carrier is also authorized to deliver the goods. If he does so and receives the price, he is of course liable for it to the seller. But he is equally liable for the price if he chooses to deliver the goods without receiving the price. It cannot be questioned that the purchaser would be liable also; but as he had received the goods from one who was authorized to deliver them, his right to hold them over as against the seller is undoubted. In other words, the direction embodied in the letters "C. O. D.," placed upon a package committed to a carrier, is an order to the carrier to collect the money for the package at the time of its delivery. It is a part of the undertaking of the carrier with the consignor, a violation of which imposes upon the carrier the obligation to pay the price of the article delivered, to the consignor. We have been referred to no authority, and have been unable to discover any, for the proposition that in such a case, after actual, absolute delivery to the purchaser by the carrier without payment of the price, the seller could reclaim the goods from the purchaser as upon violation of a condition precedent.

If now we pause to consider the actual contract relation between the seller and purchaser, where the purchaser orders the goods to be sent to him C. O. D., the matter becomes still more clear. Upon such an order, if it is accepted by the seller, it becomes the duty of the seller to deliver the goods to the carrier, with instruction to the carrier to collect the price at the time of delivery to the purchaser. In such a case it is the duty of the purchaser to receive the goods from the carrier, and at the time of receiving them, to pay the price to the carrier. This is the whole of the contract, so far as the seller and the purchaser are concerned. It is at once apparent that when the seller has delivered the goods to the carrier, with the instruction to collect the price on delivery to the purchaser, he has performed his whole duty under the contract; he has nothing more to do. If the purchaser fail to perform his part of the contract, the seller's right of action is complete; and he may recover the price of the goods from the purchaser, where the purchaser takes, or refuses to take, the goods from the carrier. Hence it follows that the passage of the title to the purchaser is not essential to the legal completeness of the contract of sale. It is in fact no more than the ordinary case of a contract of sale, wherein the seller tenders delivery at the time and place of delivery agreed upon, but the purchaser refuses performance. In such case it is perfectly familiar law that the purchaser is legally liable to pay the price of the goods, although, in point of fact, he has never had them. The order to pay on delivery is merely a superadded term of the contract; but it is a term to be performed by the purchaser, and has no other effect upon the contract than any other term affecting the factum of delivery. It must be performed by the purchaser, just as the obligation to receive the goods at a particular time or a particular place. Its non-performance is a breach by the purchaser, and not by the seller, and therefore cannot affect the right of the seller to regard the contract of sale as complete, and completely per

formed on his part, without any regard to the question whether the title to the goods has passed to the purchaser as upon an actual reception of the goods by bim. If this be so, the case of the Commonwealth falls to the ground, even upon the most critical consideration of the contract between the parties, regarded as a contract for civil purposes only. The duties which lie intermediate between those of the seller and those of the purchaser are those only which pertain to, and are to be performed by, the carrier. These, as we have before seen, are the ordinary duties of carriage and delivery, with the additional duty of receiving the price from the purchaser, and transmitting it to the seller. The only decided case to which we have been referred which presents the effect of an order C. O. D. to a carrier is Higgins v. Murray, 73 N. Y. 252. There the defendant employed the plaintiff to manufacture for him a set of circus tents. When they were finished, the plaintiff shipped them to the defendant C. O. D., and they were destroyed by fire on the route. It was held that the defendant, who was the purchaser, should bear the loss; that the plaintiff had a lien on the tents for the value of his labor and materials, and his retaining his lien by shipping them C. O. D. was not inconsistent with, and did not affect, his right to enforce the defendant's liability. In the course of the opinion, Chief Justice Church said: "Suppose, in this case, that the defendant had refused to accept a delivery of the tent, his liability would have been the same, although the title was not in him. The plaintiff had a lien upon the article for the value of his labor and materials, which was good as long as he retained possession. * * * Retaining the lien was not inconsistent with his right to enforce the liability for which this action was brought. Thatfliability was complete when the request to ship was made by the defendant, and was not affected by complying with the request, nor by retaining the lien the same as when the request was made. As the article was shipped at the request of, and for the benefit of, the defendant (assuming that it was done in accordance with the directions), it follows that it was at his risk, and could not impair the right of the plaintiff to recover for the amount due him upon the performance of his contract. ** * * As before stated, the point as to who had the title is not decisive. It may be admitted that the plaintiff retained the title as security for the debt, and yet the defendant was liable for the debt in a proper personal action." It seems to us this reasoning is perfectly sound. Practically, it was ruled that the effect of the order C. O. D. was simply the retention of the seller's lien, and that such retention of lien is not inconsistent with a right of recovery for the price of the article, though in point of fact it is not delivered to the purchaser. In other words, the literal state of the title is not decisive of the question of liability of the purchaser, and he may be compelled to pay for the article, though he never received it into his actual possession. The chief justice propounds the very question suggested heretofore, of a refusal by the purchaser to accept the article, and holds that his liability would be the same, though the title was not

in him.

In Hutchinson on Carriers, at section 389, the writer thus states the position and duty of the carrier: "The carrier who accepts the goods with such instructions [C. O. D.] undertakes that they shall not be delivered unless the condition of payment be complied with, and becomes the agent of the shipper of the goods to receive such payment. He therefore undertakes, in addition to his duties as carrier, to collect for the consignor the price of his goods." And again in section 390: When the goods are so received, the carrier is held to a strict compliance with such instructions; and if the goods are delivered without an exaction from the consignee of the amount which the carrier is

instructed to collect, he becomes liable to the consignor for it." This is certainly a correct statement of the position and liability of the carrier. He becomes subject to an added duty that of collection; and if he fails to perform it he is liable to the seller for the price of the goods. We have searched in vain for any text-writer's statement, or any decision, to the effect that in such case no title passes to the purchaser. We feel well assured none such can be found. But if this be so, the whole theory that the title does not pass if the money is not paid falls, and the true legal status of the parties results that the seller has a remedy for the price of the goods against the carrier. In other words, an order from a seller to a carrier to collect on delivery, accepted by the carrier, creates a contract between the seller and the carrier, for a breach of which by the carrier the seller may recover the price from him. So far as the seller and purchaser are concerned, the latter is liable, whether he takes the goods from the carrier or not, and the order itself is a mere provision for the retention of the seller's lien. While, if the goods are not delivered to the purchaser by the carrier, the title does not pass, that circumstance does not affect the character of the transaction as a sale; and the right of the seller to recover the price from the purchaser, if he refuse to take them, is as complete as if he had taken them, and not paid for them.

Thus far we have regarded the transactions between the parties in its aspect as a civil contract only; but when viewed in its aspect as the source of a criminal prosecution, the transaction becomes much more clear of doubt. It is manifest that, wheu the purchaser ordered the goods to be sent to him C. O. D., he constituted the carrier his agent, both to receive the goods from the seller, and to transmit the price to the seller. When therefore the goods were delivered to the carrier at Pittsburgh for the purpose of transportation, the duty of the seller was performed, as we have already seen, so far as he and the purchaser were concerned, and as between them the transaction was complete. The duty of transportation devolved upon the carrier, and for it he was, in one sense, the agent of the seller, as well as of the purchaser; but as it was to be at the expense of the purchaser, the delivery to the carrier was a delivery to the purchaser; and this was ruled in Garbrucht's Case. The injunction to the carrier to collect the money on delivery imposed an additional duty on the carrier, which the carrier was, of course, bound to discharge. This arrangement was a matter of convenience, both to the purchaser and the seller, relative to the payment and transmission of the price; but that is all. To convert this entirely innocent and purely civil conversation, respecting the mode of collecting the price of the goods, into a crime is, in our judgment, a grave perversion of the criminal law, to which we cannot assent. As a matter of course, there is an utter absence of any criminal intent in the case. The defendant had a license. The sale was made at his place of business, and both the sale and delivery were completed within the territory covered by the license. If now a criminal character is to be given to the transaction, it must be done by means of a technical inference that the title did not pass until the money was paid; and thus that the place of sale, which in point of fact was in Allegheny county, was changed to Mercer county, where no sale was made. Even granting that, in order to conserve the vendor's lien, such a technical inference would be justified for the purposes of a civil contract, it by no means follows that the plain facts of the case must be clothed with a criminal consequence on that account. So far as the criminal law is concerned, it is only an actual sale without license that is prohibited. But there was no such sale, because all the essential facts which constitute the sale transpired in Allegheny county, where the defendant's license was operative. The carrier,

being the agent of the purchaser to receive the goods, does receive them from the seller in Allegheny county, and the delivery to him for the purpose of transportation was a delivery to the purchaser. This is the legal, and certainly the common, understanding of a sale. The statute, being criminal, must be strictly construed; and only those acts which are plainly within its meaning, according to the common understanding of men, can be regarded as prohibited criminal acts. We cannot consider therefore that a mere undertaking on the part of the carrier to collect the price of the goods at the time of his delivery to the purchaser, though the payment of the price be a condition of the delivery, can suffice to convert the seller's delivery to the carrier for transportation and collection into a crime. We therefore hold that the sales made by the defendant upon orders, C. O. D., received from the purchasers were not in violation of the criminal statute against sales without license, and the conviction and sentence in the court below must be set aside. The judgment of the Court of Quarter Sessions is reversed, and the defendant is discharged from his recognizance upon this indictment.

WILLIAMS, J. (dissenting.) At the license term of the Court of Quarter Sessions for the county of Mercer in 1888, all applications from the borough of Mercer were refused. Within a few days after such refusal, the defendant, who holds a license authorizing sales by the quart and larger measure in the city of Pittsburgh, went to Mercer, and gave public notice through the local papers, and by circulars distributed from house to house, that he would supply the people of that region with liquors by the quart and upward by express, C. O. D. A trade sprung up at once, which soon reached such dimensions as to attract public notice The constable of Mercer returned the defendant as engaged in the sale of liquors in his borough without a license. He was indicted by the grand jury, tried, convicted and sentenced. He comes now into this court asking to be relieved from the conviction and sentence, alleging that his sales made in Mercer, C. O. D., were lawfully made, under his license, in Allegheny county, and that the action of the authorities of Mercer county was an unlawful interference with a legitimate business enterprise. If this is true, whatever we may think of his business methods, we ought to relieve him from an improper conviction. If it is not true, the circumstances under which these sales were made, and the evident purpose to disregard public sentiment and the action of the courts upon the subject of licenses, are reasons why the sentence should be rigidly enforced. Let us inquire therefore what the license granted by the courts of Allegheny county authorized him to do. His application was for license to sell by the quart and larger measure at a place named by him in the city of Pittsburgh. When the application was granted, it authorized him to sell at the place named, and by the measure indicated, in his petition, subject to all the limitations and restrictions imposed by law upon the traffic in intoxicating liquors. It did not authorize him to sell at any other place or in any other manner. He has no right to sell and deliver liquor by the quart to a minor or lunatic, or to one visibly affected by drink. He need not ask whether the customer who presents himself at his store lives in Allegheny county; but he is bound to take notice of his condition, if the liquor for which be applies is to be delivered into his hands at the time of sale. Such sales are in no sense sales at wholesale or to the trade, but they are sales at retail for individual consumption. The defendant could lawfully sell to the trade or to individual customers, and make delivery at the time, or through a common carrier, subject to the restrictions to which we have referred - that his sales must be made at his store.

This will be rendered more apparent if we glance at the provisions of the license law. It is well settled that a license is a personal privilege, granted in part, at least, in view of the fitness of the applicant to be intrusted with it. He is required to be a citizen. He must be a man of temperate habits, that his business may have sober and intelligent supervision. He must be a man of good moral character, affording thereby assurance that his sales shall be conducted with good faith toward the law and the public. The possession of these qualifications must be certified to by not less than twelve of his neighbors. He must give notice of his application, so that the fact may be known, and an opportunity offered for any one to object who may desire to do so. He must give a bond in the sum of $2,000, with two sufficient sureties, conditioned that he will faithfully observe all the requirements of the liquor laws. In addition to these personal qualifications, he must have a place of business. This must be rated and returned in the same manner that merchants are rated and returned for mercantile taxes; and when his license is granted, it must be framed under glass, and conspicuously displayed in his place of business, before he begins to make sales. The purpose of these provisions is evident. It is to grant licenses only to suitable persons, to conduct business at suitable places, and to secure an honest compliance with the laws. If notwithstanding all this precaution, the dealer sells to persons of a prohibited class, or on prohibited days, or at any other place than that named in his license, penalties are provided by way of punishment, and his unfitness to be trusted being thus made apparent, his license may be revoked. It is very clear that the defendant's license could not authorize him to sell and deliver by the quart or gallon to minors or other members of the prohibited classes, or to any person at any other place than his store in the city of Pittsburgh.

Let us now inquire what he did in Mercer county. He went there, and offered to supply the people with drink, not by opening a saloon, and delivering it over the counter or bar, but by delivering at their houses, shops or stores by an agent, to whom payment could be made, and by whom the bottles or package would be delivered. In consequence he received orders from individuals in Mercer, put up the bottle or bottles in a package, marked it "Glass" or Medicine," and sent it with the bill by the carrier, marked "C. O. D." The express company carried the package, collected the money, if it was paid promptly by the consignee, and delivered the package. What is the legal effect of such a sale? If the defendant had taken the bottles to Mercer in person, and delivered them on receipt of the price, no one could be found to doubt that his sale was made where he took his money and delivered his goods. If he had sent a clerk in his store to do the business for him in the same manner, the character of the transaction would be equally free from doubt. Instead of sending his clerk, he employed the carrier to collect the bill and deliver the package for him; and the carrier became his agent for collection and delivery as truly as his clerk would have been. The duty of the carrier, as such, ended with the transportation of the package. Its undertaking to collect the price and make delivery of the article was outside the functions of the carrier, and made it the agent or factor of the consignor for that purpose. The transaction, taken together, was, both on principle and authority, a sale and delivery at Mercer, and not at Pittsburgh. The duty of a common carrier is to carry for all who come (Ang. Carr., § 67; Hutch. Carr., $$ 47, 48), and his duty does not extend beyond the carriage and its necessary incidents. If he accepts for carriage a package with directions not to deliver it to the consignee except on payment of the price, he will doubtless be liable for its value if he disregards the directions, because of the

to cancel the stamps as the law requires? The answer to these questions settles his guilt or innocence. The same thing is true in this case. The law under which the defendant held his license forbade him to sell outside his place of business. The evidence shows that he made sales, not only outside of his store, but outside the county of Allegheny. He did what the law clearly said he should not do, and he thereby subjected himself to punishment. But if an evil intent was necessary to justify a conviction, the evidence was abundant to submit to the jury on that question. It showed the defendant leaving his place of business, and the county in which it was located, and seeking an opportunity to make sales and deliver his goods in the county of Mercer. It showed that his visit followed at once upon the refusal by the court of Mercer county to grant licenses. It showed that through the newspapers, and by circulars left at every door in the borough of Mercer, he invited orders, and promised fill them, delivering the drink to the consumer at his home or shop or store on payment of the price and the costs of transportation. It showed that to avoid notice, and divert attention from the character and extent of this traffic, he caused the packages in which the bottle or bottles sent to his customers were wrapped to be marked "Medicine" or "Glass." From these facts the jury would have been justified in finding that he knew that his sales were not authorized by his Allegheny county license, and that he intended to violate the law for the sake of the profits which the refusal of licenses in Mercer opened to him. But this was not necessary. It was enough that he sold and delivered liquors in Mercer county without a license If these sales were made to minors, or to other members of the prohibited classes, he might be prosecuted in the same manner as though he had delivered the liquor to the minor, lunatic or drunkard with his own hand. He is bound to know to whom he retails by the quart. The law requires it. He was granted his license upon the assurance which his certificate of temperate habits and good moral character afforded that he would give attention to his trade, and conduct it in obedience to the law. He has no right to break faith with the law, commit his business to his shipping clerk, and fill orders for liquors at retail, in small packages, for consumption by the buyers, without knowing their age, their habits, their sanity or their condition when the sale is completed by the delivery of the bottle into their hands. Sales so made are ground for the revocation of the license held by the seller, as well as for conviction of the offense charged in the indictment in this case. For the reasons now given, I dissent from the judgment in this case.

CLARK and MCCOLLUM, JJ., concur in this dissenting opinion.

[See to same effect, State v. Carll, 43 Ark. 353; 51 Am. Rep. 565; Pilgreen v. State, 71 Ala. 368. Contra: State v. O'Neil, 58 Vt. 140; 56 Am. Rep. 556; People v. Shriver, 31 Alb. L. J. 163; Baker v. Bourcicault, 1 Daly, 23.-ED.]

NEW YORK COURT OF APPEALS ABSTRACT.

ANIMALS - INJURIES BY VICIOUS.-(1) A complaint under the Laws of New York of 1872, chapter 776, which makes it unlawful for cows to run at large in any public place, alleging that defendant's cow was carelessly permitted to run at large on a public highway, where she knocked plaintiff down, is defeated by showing that while defendants' servant was lawfully leading the cow through the streets she was set upon by dogs, and escaped from his control, and while so at large inflicted the injury. (2) Defendants are not liable for such injury on an allegation that they knew the cow to be unruly and vicious, and negligently per

mitted her to be led through the street, without proof by plaintiff that the cow had previously done similar or any mischief, or that she was of an ungovernable temper, or that defendants knew her to be unruly. Nov. 26, 1889. Moynahan v. Wheeler. Opinion by Danforth, J.

MALICIOUS PROSECUTION - WILLFUL TRESPASS.In an action for a malicious prosecution under the Penal Code of New York, section 640, prescribing a penalty for willfully severing from the freehold of another any thing attached thereto, it appeared that plaintiff had been employed by defendant to do the plumbing in a stable; that after the work was done a dispute arose as to the payment therefor; that plaintiff went to the stable without the knowledge of defendant, picked the lock, and began to remove a portion of the plumbing; that the defendant discovered him, and commanded him to desist, but plaintiff continued his work. Held, that there was sufficient cause for the prosecution of plaintiff by defendant; that the action was maintainable without proof of malice. "Maliciously " imports an evil intent or wish or design to vex or annoy another person, or injure another person. Subd. 3, § 718. But it seems malice is not an element of the offense defined in section 640, subdivision 3; and the insertion of the word "maliciously" into the complaint was surplusage and unessential. While I entirely concur with my brother Haight that section 640, subdivision 3, Penal Code, does not apply to a person who severs with the consent of the owner, or who has a legal right to sever, it seems to me, with all deference to his views, that his reasoning from such a premise is not applicable to the undisputed facts in this case. While it is true that the definitions of "willful" and "willfully," as contained in section 718, were left out by the amendment of that section by chapter 384, Laws 1882, their omission does not change the meaning of those terms, but leaves the meaning to be ascertained and determined in the light of the decisions of the courts and the textwriters upon that subject. The definitions as contained in section 718, Penal Code, and left out by the amendment of 1882, especially as that definition was not changed in any respect, will at least be entitled to respectful consideration as expressive of the meaning given those words by the codifiers and the Legislature. Now if we turn to 2 Revised Statutes, marginal page 693, we find that this offense was defined in the same terms as in section 640, subdivision 3 of the Penal Code, which is said to be a re-enactment or substitute for that provision of 2 Revised Statutes, section 15, subdivision 4, marginal page 693. The words "malicious" and "willful," as used in the provisions of the Revised Statutes, supra, and the Penal Code, have not the same or equivalent meaning; for the word "willful" is employed in some of the provisions defining misdemeanors, called "willful trespass," the word "malicious" in defining others, and the word " unlawful" in defining still others. The language of the decisions of courts and text-writers upon criminal law make a marked distinction in the meaning of the words "willful" and "malicious; " and that difference, I think, is in harmony with the definitions of those as given. § 718, Pen. Code. Bishop, in his work upon Criminal Law, says: "A Massachusetts case decides that the word ' maliciously,' in the statute against malicious mischief, is not sufficiently defined as 'the willfully doing of any act prohibited by law, and for which the defendant had no lawful excuse,' but it means more. Com. v. Walden, 3 Cush. 558." $ 429. The same author says: "The words willful and malicious' cover together a broader meaning than the word willful' alone." $429. "Willfully' sometimes means little more than plain 'intentionally' or 'designedly.'" $428. Colt, J., in Com. v. Williams, 110 Mass. 401, in discussing the difference in the meaning