additional duty of receiving the price from the purchaser and transmitting it to the seller. the consignee, of the amount which the carrier This is certainly a correct statement of the 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 tents, 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. That liability 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 Thus far we have regarded the transactions with the directions), it follows that it was at between the parties in its aspect as a civil conhis risk, and could not impair the right of the tract only. But, when viewed in its aspect as plaintiff to recover for the amount due him the source of a criminal prosecution, the transupon the performance of his contract. ..action becomes much more clear of doubt. It 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 instruction (C. O. D.) undertakes that they shall not be delivered unless the condition of payment be complied with, and be comes 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 is manifest that when the purchaser ordered the 1 be done by means of a technical inference that | evident purpose to disregard public sentiment the title did not pass until the money was paid, and the action of the courts upon the subject of and thus, that the place of sale, which in point licenses, are reasons why the sentence should of fact was in Allegheny County, was changed be rigidly enforced. Let us inquire, therefore, to Mercer County, where no sale was made. what the license granted by the courts of AlleEven granting that, in order to conserve the gheny County authorized him to do? His apvendor's lien, such a technical inference would plication was for license to sell by the quart be justified, for the purposes of a civil contract, and larger measure at a place named by him in it by no means follows that the plain facts of the City of Pittsburgh. When the application the case must be clothed with a criminal con- was granted it authorized him to sell at the sequence on that account. So far as the crim- place named and by the measure indicated in inal law is concerned it is only an actual sale his petition, subject to all the limitations and without a license that is prohibited. But there restrictions imposed by law upon the traffic in was no such sale because all the essential facts intoxicating liquors. It did not authorize him which constitute the sale transpired in Alle- to sell at any other place or in any other mangheny County, where the defendant's license ner. He has no right to sell and deliver liquor was operative. The carrier, being the agent of by the quart to a minor or a lunatic, or to one the purchaser to receive the goods, does receive visibly affected by drink. He need not ask them from the seller in Allegheny County, and whether a customer who presents himself at his the delivery to him for the purpose of trans- store lives in Allegheny County, but he is bound portation was a delivery to the purchaser. This to take notice of his condition if the liquor for is the legal, and certainly the common, under- which he applies is to be delivered into his standing of a sale. The statute, being crimi- hands at the time of sale. Such sales are in no nal, must be strictly construed, and only those sense sales at wholesale or to the trade, but acts which are plainly within its meaning, ac- they are sales at retail for individual consumpcording to the common understanding of men, tion. The defendant could lawfully sell to the can be regarded as prohibited criminal acts. We trade or to individual customers and make decannot consider, therefore, that a mere under- livery at the time or through a common carrier taking on the part of the carrier to collect the subject to the restrictions to which we have price of the goods at the time of his delivery to referred, but his sales must be made at his the purchaser, though the payment of the price store. be a condition of the delivery, can suffice to convert the seller's delivery to the carrier for trans portation 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. 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. must be a man of good moral character, affordThe judgment of the Court of Quarter Sessions|ing thereby assurance that his sales shall be is reversed, and the defendant is discharged from conducted with good faith towards the law and his recognizance upon this indictment. Williams, J., dissenting: the public. He The possession of these qualifications must be certified to by not less than twelve of his At the license term of the Court of Quarter neighbors. He must give notice of his appliSessions for the County of Mercer, in 1888, all cation so that the fact may be known and an applications from the Borough of Mercer were opportunity offered for any to object who may refused. Within a few days after such refusal desire to do so. He must give a bond in the the defendant, who holds a license authorizing sum of $2,000 with two sufficient sureties, consales by the quart and larger measure in the City ditioned that he will faithfully observe all the of Pittsburgh, went to Mercer and gave public requirements of the liquor laws. In addition notice through the local papers and by circulars to these personal qualifications he must have a distributed from house to house that he would place of business. This must be rated and resupply the people of that region with liquors turned in the same manner that merchants are by the quart and upwards by express C. Ô. D. rated and returned for mercantile taxes; and A trade sprang up at once which soon reached when his license is granted it must be "framed such dimensions as to attract public notice. under glass and conspicuously displayed in his The constable of Mercer returned the defendant place of business before he begins to make as engaged in the sale of liquors in his borough sales." The purpose of these provisions is eviwithout a license. He was indicted by the dent. It is to grant licenses only to suitable grand jury, tried, convicted and sentenced. He persons, to conduct business at suitable places, comes now into this court asking to be relieved and to secure an honest compliance with the from the conviction and sentence, alleging that laws. If, notwithstanding all this precaution, his sales made in Mercer C. O. D. were lawfully the dealer sells to persons of a prohibited class made under his license in Allegheny County, or on prohibited days, or at any other place and that the action of the authorities of Mercer than that named in his license, penalties are County was an unlawful interference with a provided by way of punishment, and his unfitlegitimate business enterprise. If this is true, ness to be trusted being thus made apparent his whatever we may think of his business meth- license may be revoked. It is very clear that ods, we ought to relieve him from an improper the defendant's license could not authorize him conviction. If it is not true, the circumstances to sell and deliver by the quart or gallon to under which these sales were made, and the 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 from 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 a 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 (Angell, Carr. par. 67; Hutchinson, Carr. par. 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 contract implied from his acceptance of the package so marked. If unwilling to undertake the additional duty the carrier has the right to decline the package. If willing to undertake it he does so not as a carrier but under the direction, and as the agent, of the consignor. He transports the package as a carrier, and collects the price, and on receipt thereof makes delivery, as the vendor's agent. The title remains in the vendor until the delivery is made, and if payment is not made to the agent the package is returned to the vendor. The rule in regard to goods sent C. O. D. is very clearly stated in Hutchinson on Carriers, par. 389, as follows: "Goods are frequently sent, especially by the express carrier, with instructions not to deliver them until they are paid for. In such cases it is understood that the payment of the price and the delivery of the goods are to be concurrent acts. The car rier who accepts the goods with such instructions 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 du ties as carrier, to collect for the consignor the price of the goods." In our own State the precise question does not seem to have arisen, but there are several cases in which the principle has been clearly recognized. In Harrington v. M'Shane, 2 Watts, 443, the owners of a steamboat received flour from the plaintiff to carry to Louisville, and to sell and return the proceeds. The flour was transported to Louisville, sold, and the proceeds, together with all the papers and effects belonging to the boat, were burned dur ing the return voyage in a fire that consumed the boat. An action was brought to recover the proceeds of the flour. This court held that, as to the sale of the flour, the defendants were the agents of the consignor, but that as to the transportation, both of the flour and the money, they were carriers, and they were accordingly liable for the loss of the money. In Taylor v. Wills, 3 Watts, 65, the question of the carrier's liability was raised on a somewhat different state of facts. Flour was shipped by steamboat to a point of destination in the usual manner. The captain undertook to make sale of it and bring back the price. The flour was carried, sold by the captain and the money received by him. He never accounted for it. Suit was brought against the owners of the boat, but it was held that they had performed their contract as carriers, and that the sale of the flour and the receipt of the money by the captain was done as the agent of the shipper. The remedy of the plaintiff was therefore against his agent and not against the carrier. The same principle was involved in Pennsylvania R. Co. v. Stern, 119 Pa. 24. The carrier undertook to obtain an acceptance of a draft for the price before the delivery of the goods, but delivered them without doing so. The carrier was held liable for the goods to the consignor, this court saying through the present chief justice: "The title to the property remained in the consignors until delivery in accordance with instructions." In State v. O'Neil (Vt.) 1 New Eng. Rep. 775, it is held that "an express company carrying goods on order of the seller to deliver to purchasers C. O. D. is the agent of the seller, and title does not pass until after performance of conditions precedent, viz., delivery and payment." The only case appearing to hold a contrary doctrine, which has been brought to our attention, is Higgins v. Murray, 73 N. Y. 252. In that case tents had been manufactured for and upon the direction of a customer, and when completed, ready for delivery, he was notified of the fact. At his direction they were sent to him C. O. D., and were destroyed on the journey. He was held liable to the manufacturer, notwithstanding their loss on the journey, because the price should have been paid when the work was finished and he notified of the fact. The ground of liability is thus stated by Church, Ch. J.: "If the article had burned during the progress of construction it is clear no action would lie, for the contract was an entirety and until performed no liability would exist. And this rule would apply where the contract is to make and deliver at a particular place. But when the contract is fully performed, both as respects the character of the article and the delivery at the place agreed upon or implied, and defendant is notified; or if a specific time is fixed and the contract is performed within that time, upon general principles, I am unable to perceive why the party making such contract is not liable. This case is not authority, therefore, for the doctrine advanced by the defendant in error, but turned upon another question, viz., the right of a manufacturer to payment when he has completed the article contracted for by his customer. The rule on that subject is well stated in Ballentine v. Robinson, 46 Pa. 177: When the manufacturer of an article ordered has completed it, and upon notice of its completion the buyer refuses or neglects to pay for it and take it, the maker may sue for its value, and the measure of damages is the contract price." The manufacturer does not lose his right to sue upon his contract, because at the request of his customer he sends the goods by a carrier with instructions to collect the price. But if his contract had been to make and deliver at a place named, the title would not pass until delivery at the place named. 1 Benjamin, Sales, p. 334. and is never inquired after. It is the act, no matter with what intent done, that is forbidden. The Internal Revenue Laws of the United States are highly penal, but the courts inquire only after the act, not after the motive or intent. Did the defendant sell without a license? Did he omit to put the required stamp on his goods? Did he fail to cancel the stamp 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 courts 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 to fill them, delivering the drink to the consumer at his house 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 A 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. The same rule was held in relation to sales, in The Venus, 12 U. S. 8 Cranch, 253 (3 L. ed. 553) in which it is stated in these words: "If the thing agreed to be sold is to be sent by the vendor to the vendee, it is necessary to the perfection of the contract that it should be delivered to the purchaser or his agent.' Our precise question arose in Massachusetts in Com. v. Greenfield, 121 Mass. 40, note. dealer in liquors was licensed to sell in Pitts field. He received an order for twenty dozen bottles of lager from Lee. He carried the bottles to his customer at Lee and delivered them to him there. When indicted for the sale he set up his license to sell at Pittsfield and alleged that setting apart the bottles at his store in Pittsfield completed the sale and passed the title to his customer, but the court held otherwise, saying: "The evidence, to say the least, warranted the inference that the defendant did not intend to part with the title until he actually delivered the goods at Lee, according to the terms of the order. If such was the fact, the goods, while in the wagon of the seller, remained his property, and at his risk, and the sale was completed at Lee and not at Pittsfield." Upon this brief review of authorities we conclude that the sales made by the defendant were made at Mercer, where he delivered the liquors sold, and not at his store in Pittsburgh. It remains to be considered whether there is any reason why the defendant should be relieved from the punishment provided by law for selling liquors without a license. Let it be conceded that he supposed he had a right to make sales in the manner he did, yet ignorance of the law excuses no man. He was bound to know what he could and what he could not do under his license. It is said that the liquor laws are penal and that a man is not made a criminal without a criminal intent. This as applicable to an act malum in se is true; as applicable to things that are mala prohibita merely, it is not true. The intent is wholly immaterial But this was not necessary. It was enough that he sold and delivered liquors in Mercer County without 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 liquors 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 liquor 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. Justices Clark and McCollum concur in this dissenting opinion. UNITED STATES CIRCUIT COURT, NORTHERN DISTRICT OF CALIFORNIA. 3. The application for removal, under the Act of 1887, must be made at or before the expiration of the time to answer, as prescribed by the statute or rules of court in force at the time of the service of the summons. Subsequent extensions of time to answer by special orders of the court, or by stipulations of the parties, cannot extend the time to apply for a removal under the statute. 4. The bond required by the statute, as well as a petition, must be filed at or before the time for answering expires, to effect a removal. 5. The court cannot, by an order made after the time to answer has expired, directing the bond to be filed nunc pro tune as of a day prior to such expiration of time, cut off the right of the plaintiff to remain in the state court, which has already become vested and fixed under the statute. Ν (August 5, 1889.) claims under one federal statute and defendant under another. There must be a contested question of law upon the construction or constitutionality of one or both of such statutes. Trafton v. Nougues, 4 Sawy. 178; Me Fadden v. Robinson, 10 Sawy. 398; Hambleton v. Duham, 10 Sawy. 439; Theurkauf v. Ireland, 11 Sawy. 512; Little York Gold W. & W. Co. v. Keyes, 96 U. S. 199 (24 L. ed. 656). The defect in the bond, which is not supplied by any other part of the bond, is fatal. Desty, Remov. of Causes, 2d ed. p. 142, § 11 c; Burdick v. Hale, 7 Biss. 96; Torrey v. Grant Locomotive Works, 14 Blatchf. 269. The approval of the bond by the state court does not cure the defect. Desty, Remov. of Causes, 2d ed. p. 177, 17 d, and cases there cited. Mr. F. I. Wilson, contra. Sawyer, J., delivered the opinion of the court: One ground of the motion is that the petition does not present a case which appears from the facts stated to arise under the laws of the United States. One party claims the land in dispute as a homestead, and the other that the land is mineral, and therefore not subject to be entered as a homestead. But it does not appear from any facts stated that there is any disputed construction of either statute under which the respective parties claim. For anything that appears, both parties may agree as to the construction of the statutes, and the whole case turns upon a ques ON motion before Sawyer, J., to remand to tion of fact, as to whether the land is mineral the state court a suit removed on the ground that a federal question was involved. Remanded. The motion was based on the lack of any federal question, and also on the lack of a sufficient bond. The bond filed for removal did not specify any sum of money as the penalty, but obligated the parties "in the sum of two thousand" merely, without stating what was meant by the words "two thousand." Mr. James G. McGuire, in support of the motion: It is not sufficient to show that plaintiff *Head notes by SAWYER, J. NOTE.-Removal of cause. If the case does not substantially involve a controversy within the jurisdiction of the court, it will be the duty of the court to remand it. See Ferguson v. Ross, 3 L. R. A. 322, note. The circuit court must have jurisdiction of the subject matter and the power to do substantial justice between the parties. The nature of the action and not its form, determines its removability. State v. Chicago, B. & Q. R. Co. 3 L. R. A. 554, 37 Fed. Rep. 497. A suit which could not have been originally brought in the circuit court is not authorized to be removed thereto from the state court. Yuba Co. v. Pioneer Gold Min. Co. 32 Fed. Rep. 183. land or not, or whether either party has performed the acts conceded to be necessary to give the right claimed. Indeed I infer, from the facts stated in the petition, that the contest will really be upon the facts, and not the law. In my judgment the record does not present a case for removal under the decision in Trafton v. Nougues, 4 Sawy. 178, which was followed by Justice Field in Little York Gold Washing & W. Co. v. Keyes, whose ruling was affirmed in 96 U. S. 199 [24 L. ed. 656]. See also McFadden v. Robinson, 10 Sawy. 398, 22 Fed. Rep. 10; Hambleton v. Duham, 10 Sawy. 489, 22 Fed. Rep. 465, and Theurkauf v. Ireland Bond. Giving the requisite surety for appearing in the federal court is one of the conditions necessary to the right of removal. Johnson v. Monell, 1 Woolw. 390; Dillon, Remov. of Causes, 19; Roberts v. Canington, 2 Hall, 649; Hazard v. Durant, 9 R. I. 602. If petitioner fails to file his bond, the case remains in the state court. Hill v. Henderson, 13 Smedes & M. 688. The form of the bond or security is, however, immaterial (Tunstall v. Madison Parish, 30 La. Ann. 471; Mix v. Andes Ins. Co. 74 N. Y. 53), if the penalty is sufficient. Miller v. Finn, 1 Neb. 254; Beede v. Cheeney, 5 Fed. Rep. 388. Although a bond be defective, it may be held to Where the want of jurisdiction is apparent on be sufficient (Removal Cases, 100 U. S. 457, 25 L. ed. the face of the record, the circuit court may dis- 593); or a new bond may be substituted in the fedmiss the suit on its own motion. Mackaye v. Mal-eral court (Harris v. Delaware, L & W. R. Co. 18 lory, 19 Blatchf. 165; Am. Bible Society v. Grove, 101 U. S. 610 (25 L. ed. 847). Fed. Rep. 833); but it must provide for the appearance of the petitioner at the next term of the court. Miller v. Finn, 1 Neb. 254. |