dee when the bargain was struck. Any loss of the property by accident would have been his loss. The vendor had a lien on the goods for his price. The vendor could sue for the price, and the vendee, upon tender of the price, could sue for the property. . . . . In this case both the seller and purchaser had a qualified right of possession, the seller upon the purchaser's neglect or refusal to pay for the goods, and the buyer by paying for the same." In the case at bar it appears from the agreed statement of facts that the sale in question was made upon a written order addressed to the seller, William Mullin, whose place of business was in the village of 369 Amsterdam. It was there that the offer of Dunn, the purchaser, was received, accepted and acted upon. Upon receipt of the order, the beer ordered was set apart, and, in accordance with the express directions of the purchaser, was delivered to and accepted by a carrier of his selection, to be transported to him at Burton Station, he, as purchaser and consignee, to pay the cost of transportation. When the order sent by Dunn was received and acted upon by Mullin, and the property ordered had been delivered by him to the express company, as requested by Dunn, the contract of sale was so far complete that title to the property passed to the purchaser, and a right of action accrued to the seller for the recovery of the purchase price. The mere fact that the goods were sent marked "C. O. D." did not, in this case, constitute the express company the agent of Mullin for the purpose of making delivery to the purchaser at Burton Station of the goods sold, for, in contemplation of law, delivery had already been made at Amsterdam. The express company, while undoubtedly the agent of Mullin to receive the price, was the agent of Dunn, the purchaser, to receive for him at Amsterdam the property purchased. Hence, the sale was a sale at Amsterdam, and title to the property sold there passed to the purchaser: Norris v. State, 25 Ohio St. 217, 18 Am. Rep. 291; Commonwealth v. Fleming, 130 Pa. 138, 17 Am. St. Rep. 763, 18 Atl. 622, 5 L. R. A. 470; Garbracht v. Commonwealth, 96 Pa. 449, 42 Am. Rep. 450; State v. Carl, 43 Ark. 353, 51 Am. Rep. 565; Black on Intoxicating Liquors, sec. 434; Higgins v. Murray, 73 N. Y. 252; 1 Parsons on Contracts, sec. 533. The case of State v. O'Neil, 58 Vt. 140, 56 Am. Rep. 557, 2 Atl. 586, and 370 Village of Bellefontaine v. Vassaux, 55 Ohio St. 323, 45 N. E. 321, are relied upon by counsel for plaintiff in error as supporting his contention that the sale of intoxicating liquors here in question was a sale made at the place of destination and not at the place of shipment. Both of these cases, however, are upon the controlling facts, clearly distinguishable from the present case. In State v. O'Niel, 58 Vt. 140, 56 Am. Rep. 557, 2 Atl. 586, at the time the liquor was delivered to the express company for transportation, there was attached to the bill of said liquor, as part of the contract of delivery, the following express written instructions: "Do not deliver the whole or any part of the goods accompanying this bill until you receive pay therefor. . . . . If goods are refused, or parties cannot be found, notify the office from whence received with names and dates, and await further instructions." The court, in the opinion in that case, discussing the effect of such a delivery to the carrier, say: "Attached to the very body of the contract, and to the act of delivery to the carrier, was the condition of payment before delivery of possession to the consignee. With this condition unfulfilled and not waived, it would be impossible to say that a delivery to the carrier was intended by the consignor as a delivery to the consignee, or as a surrender of the legal title. The goods were intrusted to the carrier to transport to the place of destination named, there to present them for acceptance to the consignee, and if he accepted them and paid the accompanying invoice and the transportation charges, to deliver them to him; otherwise, to notify the consignor and hold them subject to his order. It is difficult 371 to see how a seller could more positively and unequivocally express his intention not to relinquish his right of property or possession in goods until payment of the purchase price than by this method of shipment. We do not think the case is distinguishable in principle from that of a vendor who sends his clerk or agent to deliver the goods, or forwards them to, or makes them deliverable upon the order of, his agent, with instructions not to deliver them except on payment of the price, or performance of some other specified condition precedent by the vendee." As showing that the case of Bellefontaine v. Vassaux, 55 Ohio St. 323, 45 N. E. 321, does not support the contention of counsel for plaintiff in error, but is in entire harmony with the authorities above cited, we need only call attention to the first two clauses of the syllabus in that case; they read as follows: "1. The general rule is that title to goods intended to be transported passes from the vendor to the purchaser upon delivery by the former to a common carrier consigned to the purchaser, whether paid for or not. But if the vendor consigns the goods nominally to the purchaser, but actually in care of his own storekeeper, who is to retain them in control and give possession to the purchaser only on payment of the purchase price, then the delivery to the common carrier is not, in law, delivery to the purchaser. 2. Under such circumstances, the shipment being in effect to the vendor himself, the delivery, when it occurs, would be at the storehouse of the vendor; and the transaction would not be a completed sale at the point of shipment.' We are of opinion that upon the agreed facts, the judg ment of conviction in the 372 present case was properly reversed by the circuit court and the defendant discharged. Judgment affirmed. Price, C. J., Shauck, Summers, Spear and Davis, JJ., con cur. Sales are Consummated upon the Delivery and Transfer of Title. Hence, where liquor is sold to be delivered f. o. b., the cars at a certain place, it becomes the property of the purchaser when it is delivered at such place to the carrier, who, for the purposes of delivery, represents the purchaser: Bollinger v. Wilson, 76 Minn. 262, 77 Am. St. Rep. 646. A sale of intoxicating liquor, ordered by express, is complete, and property passes to the purchaser, when the liquor is delivered to an express agent for transportation, and not when it is received of the express agent by the purchaser: State v. Flanagan, 38 W. Va. 53, 45 Am. St. Rep. 836. And if an agent for a liquor house takes a written C. O. D. order for liquor, the sale is consummated at the place of shipment, and not at the place of destination, although there is an oral agreement that the purchaser need not accept the liquor, and that the title shall remain in the seller until the liquor is paid for: Golightly v. State, 49 Tex. Cr. 44, 122 Am. St. Rep. 779. See, too, Hart v. State, 87 Miss. 171, 112 Am. St. Rep. 437. If Whisky is Sent by Express from One State to Another to a person who knows nothing of it until it arrives at its destination, when others desiring liquor give him the money to pay the express charges, and he so uses the money, and turns the whisky over to them, he is guilty of making a sale of intoxicating liquor in violation of a local option law: Dunn v. State, 48 Tex. Cr. 107, 122 Am. St. Rep. 734. CASES IN THE SUPREME COURT OF RHODE ISLAND. MITCHELL v. DONANSKI. MALICIOUS PROSECUTION-Issuance of Warrant.-An action for malicious prosecution does not lie for procuring the issuance of a warrant upon a charge not actionable per se, where no service of the warrant has been made and no judicial action has been taken in the proceeding and no special damage is alleged. (p. 719.) Trespass on the case for malicious prosecution. Edward G. Carr, for the plaintiff. William T. O'Donnell and Edward DeV. O'Connor, for the defendant. 95 BLODGETT, J. The defendant's demurrer to the declaration in this action for malicious prosecution having been sustained by the superior court, the plaintiff seeks here a reversal of that ruling by his exceptions thereto. The error alleged is thus stated: "That said court made an error of law in sustaining said demurrer: "a. In deciding that plaintiff had not alleged in said declaration such a commencement or beginning of the criminal prosecution declared upon as to entitle him to maintain the present action. "b. In deciding that service of process, i. e., arrest of the defendant in the criminal prosecution, was necessary to the maintenance of the present action. "e. In deciding that plaintiff had not alleged in his said declaration such a termination of the criminal prosecution as to entitle him to maintain the present action. "d. In deciding that plaintiff had not set forth in said declaration a cause of action." The declaration, after alleging a complaint under oath to the clerk of the fifth judicial district court by the defendant against the plaintiff, "falsely, maliciously, and without probable cause," charging him with threatening to assault and to kill the defendant, and the issuance of a warrant thereon and its direction and delivery to one James Hoard, Jr., the town sergeant of Bristol, for service, thus continues: "That the said James Hoard, Jr., had said warrant in his hands and possession for the purpose and with the intention of serving the same on the said plaintiff for a long time, to wit, till the twenty-second day of said month, and during all that time made divers efforts and attempts to serve the same on the said plaintiff; that on said last mentioned day the said defendant instructed said James Hoard, Jr., not to serve the said warrant upon the said plaintiff, but to forever desist from and abandon the same, and the said James Hoard, Jr., did thereupon desist from the service 96 of said warrant on said plaintiff and entirely abandon the same, and said defendant paid the costs of said prosecution to said last mentioned date, and withdrew, dismissed and entirely abandoned said complaint and prosecution." It is evident that the charge preferred against the plaintiff was not the commission of a crime, and was not slanderous per se. In Fanning v. Chace, 17 R. I. 388, 33 Am. St. Rep. 878, 22 Atl. 275, 13 L. R. A. 134, this court says: "It therefore follows that, as mere intent to commit a crime is not a violation of law, and hence not punishable, to accuse one of having such an intent is not to accuse him of any crime or offence.' While there is not a uniformity of decision upon this question, cases are not wanting which hold that, in a criminal prosecution, service of process is necessary before an action of malicious prosecution will lie. In Byne v. Moore, 1 Marsh, 12, it was said by Lord Chief Justice Mansfield: "I cannot see what damage a man can sustain by the preferring a bill of indictment against him which is not found. How, then, can the law say that a man can support an action for preferring an indictment against him by which he has sustained no actual damage? It does not appear that the plaintiff's personal security was ever endangered. . . . . It would be a very bad precedent if this nonsuit were set aside, as every bill that was thrown out by the grand jury would become the foundation of an action." |