localities, of intoxicants to be shipped into The legislature cannot enact that all C. O. D. sales shall be deemed to have been made at the place of destination, if it is local option territory, under a constitutional provision permitting the people of any locality to prohibit the sale of intoxicants within the limits of the town or precinct adopting the law. 3. Sale-shipment C. O. D. The sale is completed where the order is received and filled, where a person in one place sends an order for intoxicating liquor to another place, to be sent C. O. D. A (Brooks, J., dissents.) (April 12, 1905.) PPEAL by defendant from a judgment of the Hill County Court convicting him of violating the local option law. Reversed. The facts are stated in the opinion. Messrs. Collins & Cummings, for appellant: The locus of a sale in a C. O. D. shipment is at the point of shipment. Bruce v. State, 36 Tex. Crim. Rep. 53, 35 S. W. 383, 39 S. W. 683; Weldon v. State, 36 Tex. Crim. Rep. 34, 35 S. W. 176; Freshman v. State, 37 Tex. Crim. Rep. 127, 38 S. W. 1007; Weathered v. State (Tex. Crim. App.) 60 S. W. 876; James v. Com. 102 Ky. 108, 42 S. W. 1107; Treadaway v. State, 42 Tex. Crim. Rep. 466, 62 S. W. 574; Norfolk & W. R. Co. v. Sims, 191 U. S. 441, 48 L. ed. 254, 24 Sup. Ct. Rep. 151; Specialty Furniture Co. v. Kingsbury (Tex. Civ. App.) 60 S. W. 1030; Mechem, Sales, §§ 726 et seq.; Black, Intoxicating Liquors, § 269. Messrs. Etheridge & Baker, also for appellant: A wholesale liquor dealer, legally conducting his business as such in a county where local option does not prevail, commits no offense by accepting and filling an order emanating from a party in a localoption county, requesting a C. O. D. shipment to him of a specified amount of liquor. In such case the sale is consummated at the domicil of the vendor, and no sale is made within the local-option territory. the power of the legislature under the same view. Koester v. Atchison County, 44 Kan. provision. Ex parte Brown, 38 Tex. Crim. 141, 24 Pac. 65, holds the creation of county Rep. 295, 70 Am. St. Rep. 743, 42 S. W. 554, high schools not prohibited by the provision denies the power of the legislature, under of Kan. Const. art. 6, § 2, requiring the legissuch provision, to pass an act making it a lature to establish a uniform system of comcrime to keep intoxicating liquor in cold mon schools and schools of a higher grade, storage, by one citizen for another, in a embracing normal, preparatory, collegiate, local-option territory. State v. Gilman, 33 and university departments; even if high W. Va. 146, 6 L. R. A. 847, 10 S. E. 283, holds schools are not embraced in the latter prothe provision of W. Va. Const. art. 6, § 46, vision. Curryer v. Merrill, 25 Minn. 1, 33 that laws may be passed "regulating or pro- Am. Rep. 450, holds that the provision of hibiting" the sale of intoxicating liquors Minn. Const. art. 8, § 1, that the legislature within the state, an implied prohibition shall establish a general and uniform sysagainst the power of the legislature to pass tem of public schools, does not prohibit it an act providing that no person shall, with from providing other public schools in addiout a state license, "keep in his possession tion to those included in the general system, for another spirituous liquors." People ex nor from creating, by way of exception to rel. Mooney v. Hutchinson, 172 Ill. 486, 42 the general uniformity, special school disL. R. A. 770, 50 N. E. 599, holds the pro- tricts to meet particular and exceptional vision of Ill. Const. art. 4, § 6, that the gen- cases. State ex rel. Lamar v. Jacksonville eral assembly shall apportion the state Terminal Co. 41 Fla. 377, 27 So. 225, holds every ten years, beginning with 1871, by di- that the provision of Fla. Const. art. 16, § 30, viding the population as ascertained by the requiring the legislature to provide for enFederal census, a prohibition against a forcing, "by adequate penalties and forfeitchange in apportionment within the tenures," laws passed to prevent discrimination years. This case is cited in Cooley, Const. Lim. 7th ed. p. 115, in support of the principle that, if directions are given in a Constitution respecting the times or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only. Denney v. State, 144 Ind. 503, 31 L. R. A. 726, 42 N. E. 929 holds the same way, under the provision of Ind. Const. art. 4, § 4, for an apportionment by the general assembly at its second session after the adoption of the Constitution and every six years thereafter. There are other cases in opposition to such and excessive charges by common carriers, does not, by implication, prevent the legislature from authorizing the use of mandamus to enforce the duties imposed by such laws. And Brown v. Com. 98 Ky. 652, 34 S. W. 12, holds that the provision of Ky. Const. § 61, requiring the general assembly to provide, by general law, a means for taking the sense of the voters of any county, city, town, district, or precinct as to whether liquor shall be sold, does not deprive it of the power to permit or prohibit sales until such time as the sense of the people can be taken in the manner prescribed by law. Ryan v. Missouri, K. & T. R. Co. 65 Tex. | Pat Moore, at Hillsboro, in Hill county, 16, 57 Am. Rep. 589; Fidelity Life Asso. v. some whisky C. O. D., on an order previHarris, 94 Tex. 25, 86 Am. St. Rep. 813, 57 ously given by Pat Moore to appellant. The S. W. 635; O'Neil v. Vermont, 144 U. S. conviction occurred in Hill county for a 345, 36 L. ed. 460, 12 Sup. Ct. Rep. 693; violation of the local-option law. There is Waples v. Overaker, 77 Tex. 7, 19 Am. St. no question as to the fact that this was an Rep. 727, 13 S. W. 527; Voelcker v. McKay ordinary C. O. D. contract or order. So we (Tex. Civ. App.) 61 S. W. 424; Specialty have practically the sole question as to Furniture Co. v. Kingsbury (Tex. Civ. App.) where a sale under this character of con60 S. W. 1030; Pilgreen v. State, 71 Ala. 369; tract occurs. Contracts are matters of fact, State v. Carl, 43 Ark. 353, 51 Am. Rep. 565; to be decided by the terms and stipulations Irvin v. Edwards, 92 Tex. 258, 47 S. W. 719; of the contracts and intent of the contractPotts v. State (Tex. Crim. App.) 74 S. W. ing parties. Where the question of pre31; Harkins v. State (Tex. Crim. App.) 75 sumption may be one arising in the case, S. W. 26; Black, Intoxicating Liquors, § that presumption will be taken in favor of 434, p. 510; Williams v. Feiniman, 14 Kan. the accused, under the broad theory of the 288; Haug v. Gillett, 14 Kan. 140; Banchor presumption of innocence and the reasonv. Warren, 33 N. H. 183; Boothby v. Plaisted, able doubt of guilt which obtains in all 51 N. H. 436, 12 Am. Rep. 140; 17 Am. & trials of criminal cases. Even in civil cases Eng. Enc. Law, 2d ed. pp. 300, 301; Carthage it will not be presumed that parties delibv. Duvall, 202 Ill. 234, 66 N. E. 1099; Car- erately enter into an agreement or make thage v. Munsell, 203 Ill. 474, 67 N. E. 831; a contract, knowing or intending that it Farmers' Phosphate Co. v. Gill, 69 Md. 537, shall be invalid or violative of the law. 1 L. R. A. 767, 9 Am. St. Rep. 443, 16 Atl. Ryan v. Missouri, K. & T. R. Co. 65 Tex. 16, 214; Sarbecker v. State, 65 Wis. 171, 50 57 Am. Rep. 589. The place of sale often Am. Rep. 624, 26 N. W. 541; State v. In- becomes a very material question in contoxicating Liquors, 73 Me. 278; State v. struing contracts. "The test is generally Peters, 91 Me. 31, 39 Atl. 342; Com. v. Flem- held to be the acquiescence or final agreeing, 130 Pa. 138, 5 L. R. A. 470, 17 Am. St. ment of minds by which the contract is Rep. 763, 18 Atl. 622; Sachs v. Garner, 111 concluded, and the place where that occurs Iowa, 424, 82 N. W. 1007; Tegler v. Ship- is the place where the contract, for most man, 33 Iowa, 194, 11 Am. Rep. 118; Taylor purposes, is held to have been made." Fidelv. Pickett, 52 Iowa, 467, 3 N. W. 514; United ity Mut. Life Asso. v. Harris, 94 Tex. 25, 86 States v. Lackey, 120 Fed, 577; De Bary v. Am. St. Rep. 813, 57 S. W. 635. In CleveSouer, 41 C. C. A. 417, 101 Fed. 425; Shuen- land v. Williams, 29 Tex. 204, 94 Am. Dec. feldt v. Junkermann, 20 Fed. 357; Nor- 274, it is said: "By the common law, if a folk & W. R. Co. v. Sims, 191 U. S. 441, seller make a proposition, and the buyer 48 L. ed. 254, 24 Sup. Ct. Rep. 151; State accept, and the goods are in the possession v. Cairns, 64 Kan. 782, 58 L. R. A. 55, 68 of the seller, and nothing remains to be Pac. 621; State v. Flanagan, 38 W. Va. 53, done to identify them or in anyway pre22 L. R. A. 430, 45 Am. St. Rep. 836, 17 S. pare them for delivery, the sale is complete, E. 792; James v. Com. 102 Ky. 108, 42 S. and the property in the goods passes at W. 1107; Garbracht v. Com. 96 Pa. 449, 42 once. The buyer acquires not a mere jus Am. Rep. 550; Higgins v. Murray, 73 N. Y. ad rem, but an absolute jus in re, and he 252; Smith v. State (Ark.) 16 S. W. 2; may demand delivery at once on tender of Dunn v. State, 82 Ga. 27, 3 L. R. A. 199, the price, and sue for the goods as his own 8 S. E. 806; Crook v. Cowan, 64 N. C. 743; if delivery be refused. The goods State v. Shields, 110 La. 547, 34 So. 673; sold must be ascertained, designated, and Pearson v. State, 66 Miss. 510, 4 L. R. A. separated from the stock or quantity with 835, 6 So. 243; Gross v. Scarr, 71 Iowa, 656, which they are mixed before the property 33 N. W. 223; State v. Ascher, 54 Conn. can pass. Until this be done, it 299, 7 Atl. 822; State v. Wingfield, 115 Mo. is merely a sale without a subject-matter 428, 37 Am. St. Rep. 406, 22 S. W. 363; in esse, which cannot take effect in præKerwin v. Doran, 29 Mo. App. 397; State v. senti." So, where the party sells a certain Colby, 92 Iowa, 463, 61 N. W. 187; State v. stipulated amount of property, to be segrePeters, 91 Me. 31, 39 Atl. 342; Frank v. gated from a general stock, the sale is comHoey, 128 Mass. 263. plete when the amount of property agreed Messrs. Greenwood & Traylor and Howard upon has been so set apart, and the title Martin for the State. at once passes to the buyer. However, if there are other conditions to pass title, it Davidson, P. J., delivered the opinion of will not pass until compliance with such the court: The facts disclose that appellant shipped from West, in McLennan county, to conditions. For instance, if, in addition to the segregation from the general stock, it is stipulated that the seller shall convey and turn it over to a common carrier, the title will not pass until it has been received by the common carrier. This was decided in Woods v. Half, 44 Tex. 633. After it has then been received by the common carrier, the title is in the purchaser. In Waples v. Overaker, 77 Tex. 7, 19 Am. St. Rep. 727, 13 S. W. 527, appellants were millers doing business in the city of Sherman, and contracted with appellees to buy wheat at the market price in Collin county, where they lived. Seven car loads of wheat were bought by appellees under this contract, and shipped to appellants, who refused to receive the wheat on its arrival at Sherman. The court said: "There may have been such constructive delivery and existence of such other facts as would have vested title to the wheat in appellants; but they cannot claim, under the facts shown, that such an absolute delivery had been made as would defeat the lien of appellees for the purchase money." Again: "As the wheat stood in the cars, appellants refus ing to receive and pay for it, it was the right of appellees to hold it until its price was paid, as they might have done, had the wheat not been shipped to Sherman. Appellants having refused to receive and pay for the wheat, appellees might have retained it, and recovered the difference between the contract price and the market price at time and place of delivery, or they might have held the property for appellants at their risk, and recovered the purchase money," etc. See also Voelcker v. McKay (Tex. Civ. App.) 61 S. W. 424. In Specialty Furniture Co. v. Kingsbury (Tex. Civ. App.) 60 S. W. 1030, the court, speaking through Judge Pleasants, said: "The contract of sale was complete when appellant accepted the order for the goods, and a delivery of the goods on the car at Evansville, Indiana, would have been a delivery to the appellee, and the title to the goods would have passed to appellee by such delivery." In Irvin v. Edwards, 92 Tex. 258. 47 S. W. 719, there was a contract between Irvin and Jennings by which Irvin contracted to sell Jennings certain cattle. A small portion of the purchase money was paid; the remaining instalments to be paid as the cattle were delivered. The cattle were not delivered until after the 1st of January, 1895; the contract having been entered into on the 18th day of the previous September. The question in the case was whether Irvin, the vendor, or Jennings, the vendee, was liable for the taxes for 1895 on the cattle. It was contended that, as possession was surrendered subsequent to January 1, 1895, Irvin was liable for the taxes. Suit was instituted by Irvin to restrain Sheriff Ed wards from enforcing the collection of the taxes. The district court issued a temporary injunction, which was subsequently perpetuated. The court of civil appeals (45 S. W. 1026) reversed the judgment and dissolved the injunction. On writ of error the supreme court reversed the judgment of the court of civil appeals, and affirmed the judgment of the district court. Passing on the question, the supreme court uses this language: "The court of civil appeals held that, construing the whole instrument, the intention [that is, of passing the title] thus manifested was shown not to exist in fact, but that the parties intended the title should not vest until delivery should be made: It is true that only a part of the purchase money was paid at the time, and the contract prescribed that the remainder of the purchase money should be paid in instalments as the cattle should be delivered. This does not prove that the parties intended the title to remain in Irvin until delivery: It was not at all unusual in such transactions to so provide, but was a reasonable arrangement for completing the payments of the price." In Greif v. Seligman (Tex. Civ. App.) 82 S. W. 534, this language is used: "In the absence of an express or implied agreement, it is the general rule that, as between the parties, if the goods are delivered to a carrier by a seller, it is a delivery to the buyer, and a fortiori to one specially designated, by the buyer. The rule is that stated in Wheelhouse v. Parr, 141 Mass. 593, 6 N. E. 787: When goods ordered and contracted for are not directly delivered to the purchaser, but are to be sent to him by the vendor, and the vendor delivers to the carrier, to be transported in the mode agreed on by the parties or directed by the purchaser; or, when no agreement is made or direction given, to be transported in the usual mode; or when the purchaser, being informed of the mode of transportation, assents to it; or when there have been previous sales of other goods, to the transportation of which in a similar manner the purchaser has not objected, the goods, when delivered to the carrier, are at the risk of the purchaser; and the property is deemed to be vested in him, subject to the vendor's right of stoppage in transitu.' If. however, there be an express agreement that the vendor must actually deliver the goods at the point of destination, and not to be paid for unless so delivered, it would be binding upon the parties; and a delivery to the carrier would not be sufficient. From the testimony of Julius Seligman, a jury might possibly be justified in concluding that such a contract was made... Further, if it had been shown that no route had been designated, the delivery of the v. St. Louis, K. C. & N. R. Co. 1 Mo. App. 158; Ober v. Smith, 78 N. C. 313; Philadelphia & R. R. Co. v. Wireman, 88 Pa. 264; Summeril v. Elder, 1 Binn. 106; Swanke v. McCarty, 81 Wis. 109, 51 N. W. 92; Whit goods to the carrier was a delivery to ap- | Johnson v. Stoddard, 100 Mass. 306; Torpellee, in the absence of an agreement re- rey v. Corliss, 33 Me. 333, 336; Armentrout quiring the actual delivery of the goods to appellee in Seguin. Should the contract of purchase be silent as to the person or mode by which the goods are to be sent, a de livery by the vendor to a common carrier, in the usual and ordinary course of busi-man Agri. Co. v. Strand, 8 Wash. 647, 36 ness, transfers the property to the vendee. Mechem, Sales, § 736, and authorities cited." Pac. 682; Embree-McLean Carriage Co. v. Authorities along this line might be mul- S. 223, following Fragano v. Long, 4 Barn. tiplied indefinitely. & C. 219; Falvey v. Richmond, 87 Ga. 99, 13 S. E. 261, citing the Georgia cases; Mann v. Glauber, 96 Ga. 795, 22 S. E. 405; Brooks v. Geo. H. Field Paper Co. 94 Tenn. 701, 31 S. W. 160.” This has been settled law in Texas from the beginning. See also Smith v. Whitfield, 67 Tex. 126, 2 S. W. 822; Ballinger Nat. Bank v. Bryan, 12 Tex. Civ. App. 674, 34 S. W. 451; Owens v. Clark, 78 Tex. 550, 15 S. W. 101; Stephens v. Adair, 82 Tex. 222, 18 S. W. 102; Hopkins v. Partridge, 71 Tex. 608, 10 S. W. 214; Downey v. Taylor (Tex. Civ. App.) 48 S. W. 542. These authorities establish beyond controversy the law in Texas to be that wherever, under a con mon carrier or the transporting agent by the vendor, to be carried to the vendee, unless there be some contingencies defeating or withholding the title in the vendor, it immediately passes to the vendee; and the seller has the right to collect his money from the purchaser, although lost in transit. There are only a few cases in the United States which hold to the contrary, and none in Texas of which we are aware. The same rule applies to the ordinary C. O. D. shipment. Mr. Benjamin, in his work on Sales, 7th | ed. § 362, says: "In 1803, in the case of Dutton v. Solomonson, it was treated as already settled law that, where a vendor de livers goods to a carrier by order of the purchaser, the appropriation is determined, the delivery to the carrier is a delivery to the vendee, and the property vests immediately. And in the United States the law is established to the same effect;" citing in the note supporting this proposition 3 Bos. & P. 582, per Lord Alvanley, Ch. J. And see Cork Distilleries Co. v. Great Southern & W. R. Co. L. R. 7 H. L. 269; Johnson v. Lancashire & Y. R. Co. L. R. 3 C. P. Div. 499, where, under somewhat curious circum-tract, the goods are turned over to the comstances, the same rule was applied; Krulder v. Ellison, 47 N. Y. 36, 7 Am. Rep. 402; Pacific Iron Works v. Long Island R. Co. 62 N. Y. 272; Mee v. McNider, 39 Hun, 345. On page 349 of the same work, in the note headed, "American Note. §§ 358–380,” these cases are cited: "The American law fully agrees with the English that a delivery to a carrier, as directed by the purchaser, or as warranted by custom and usage, is such an appropriation as to bind the vendor, and make the goods the property of the vendee from the moment of such delivery; and the Mr. Justice Field, in O'Neil v. Vermont, risk thenceforth is on him. This is so ob- 144 U. S. 345, 36 L. ed. 460, 12 Sup. Ct. Rep. vious as hardly to need any reference Lo 701, uses this language: "Transactions like the authorities; but see The Mary, 1 Wheat. those in controversy-that is, purchases of 25, 4 L. ed. 27; Stanton v. Eager, 16 Pick. small quantities of goods upon orders, the 467; Magruder v. Gage, 33 Md. 344, 3 Am. packages to be shipped by the vendor, with a Rep. 177; Bailey v. Hudson River R. Co. 49 direction to collect the amount of the price N. Y. 70; Gutwillig v. Zuberbier, 41 Hun, on delivery-take place in this country 361; Stafford v. Walter, 67 Ill. 83; Whiting every month to the amount of millions of v. Farrand, 1 Conn. 60; Ranney v. Higby, 4 dollars. Orders are sent all over the counWis. 154, 5 Wis. 62; Blum v. The Caddo, try for articles of small bulk; to Califor1 Woods, 64 Fed. Cas. No. 1,573; Wing v. nia for fruits and wines, to Florida for orClark, 24 Me. 366; Schmertz v. Dwyer, 53 anges, to Kentucky for whiskies, and to the Pa. 335; Putnam v. Tillotson, 13 Met. 517; dealers in our large cities in general merGriffith v. Ingledew, 6 Serg. & R. 429, 9 Am. chandise for small parcels of different Dec. 444; Waldron v. Romaine, 22 N. Y. kinds. They are transmitted without hesi368; Grove v. Brien, 8 How. 438, 12 L. ed. tation by the vendors upon the receipt of 1146; Hunter v. Wright. 12 Allen, 548: such orders, often even without knowledge Kelsea v. Ramsey & G. Mfg. Co. 55 N. J. L. of the parties sending them, their security 320, 22 L. R. A. 415, 26 Atl. 907; Law-being the retention of a lien upon the proprence v. Minturn. 17 How, 107, 15 L. ed. 61; Claflin v. Boston & L. R. Co. 7 Allen, 341; Odell v. Boston & M. R. Co. 109 Mass. 50; erty shipped until the cash is actually paid. Amazement would strike the large class of merchants engaged in transmitting goods in this way from one portion of the country | required to obtain a license from the auto another if they were told that they thorities of each city or county in which thereby rendered themselves liable to the contracts are made therefor by such agents. penal statutes of the states to which the (2) A licensed dealer, who receives at his goods were sent in compliance with the place of business an order for liquor from a orders of the purchasers, and might be place in which he has no license, and fills prosecuted for criminal offenses committed it by selecting the liquor from his stock and in those states, which they had never vis-delivering it to an express company or other ited, and with whose laws they never in tended to interfere." These views were subsequently adopted by the entire court in the case of Norfolk & W. R. Co. v. Sims, 191 U. S. 446, 48 L. ed. 256, 24 Sup. Ct. Rep. 151; and in the later case of American Exp. Co. v. Iowa, 196 U. S. 133, 49 L. ed. 417, 25 Sup. Ct. Rep. 182. This has now become the settled rule by the decisions of the Supreme Court of the United States. The same rule is laid down in Black on Intoxicating Liquors. Section 267 of that work says: "It frequently becomes important to localize a sale of liquor, in order to determine whether the transaction must be regarded as taking place in the foreign state, where it would be lawful, or in the state of the forum, where it would be illegal. Many elements may enter into the determination of this question, but those most important to be considered are the place where the order was given, the place where delivery is made, and the character of the sale, as final or conditional." And in § 268 the same author says: "It is generally held that where a person living and doing business in one state sends his agent into another state to solicit orders for goods, and the agent there takes orders and sends them to his principal's place of business, and the latter fills the orders, and, without any special arrangement as to the manner and place of delivery, delivers them to a carrier in his own state, to be transported at the expense of the purchaser to the latter's place, the place of sale is in the state where the agent's principal does business." And in § 434 it is said: "The privilege conferred by a license to sell liquor is territorially restricted. And the license affords no justification for a sale made beyond the limits to which it is applicable. For instance, a person who has a license to sell in one county, and sells in another, may be indicted for selling without a license. In cases arising under this rule the vital question is almost always the determination of the place of the sale. And in this connection we find the following rules established or recognized by the best authorities: (1) Where a liquor dealer has a license from the city or county in which his store is kept, he may send out agents and take orders in any part of the state, for goods to be selected and forwarded from the stock kept in such store; and he is not carrier, to be carried to the purchaser, does not violate the license law, although the carrier agrees to collect and return the price; for the sale is made at the place where the goods are separated from the general stock and delivered to the carrier, sucn delivery being delivery to the consignee. (3) Irrespective of the place where the bargain was made or the order received, if the seller, by his own hands or the hands of his servant or agent, carries the liquor to the purchaser, without any intermediate delivery to or through a common carrier, and delivers the liquor to the purchaser at the latter's place, and there receives the pay for it, the sale is made at the place of delivery; and, if the vendor is not licensed to sell there, he is indictable. (4) If an order for liquor is given by a person in A to an agent of a dealer, who has a license to sell liquor in B, and received by the agent subject to his principal's approval, and the liquor is put up by the seller, directed to the buyer at A, and delivered to a carrier at B, the sale is regarded as made at B, and is not unlawful.” In Com. v. Fleming, 130 Pa. 138, 5 L. R. A. 470, 17 Am. St. Rep. 763, 18 Atl. 622, the majority opinion held, in accordance with the views expressed by this court, commencing with Bruce v. State, 36 Tex. Crim. Rep. 53, 35 S. W. 383, 39 S. W. 683, that the sale is at the point of shipment, and not at the point of destination, and that the seller simply retains the lien upon the goods so shipped, and uses the C. O. D. method as a convenient one for the collection of the money,-the contract price. See also Black, Intoxicating Liquors, § 434. The doctrine is clearly declared in State v. Flanagan, 38 W. Va. 53, 22 L. R. A. 430, 45 Am. St. Rep. 836, 17 S. E. 792. For a collation of some of the authorities supporting the decisions of this court, see 22 L. R. A., note on page 426; Kelsea v. Ramsey & G. Mfg. Co. 55 N. J. L. 320, 22 L. R. A. 415, 26 Atl. 907; State v. Carl, 43 Ark. 353, 51 Am. Rep. 565; Smith v. State (Ark.) 16 S. W. 2; Williams v. Feiniman, 14 Kan. 288; Haug v. Gillett, 14 Kan. 140; Banchor v. Warren, 33 N. H. 183; Boothby v. Plaisted, 51 N. H. 436, 12 Am. Rep. 140; Carthage v. Duvall, 202 Ill. 234, 66 N. E. 1099; Carthage v. Munsell, 203 Ill. 474, 67 N. E. 831; Farmers' Phosphate Co. v. Gill, 69 Md. 537, 1 L. R. A. 767, 9 Am. St. Rep. 443, 16 Atl. 214; |