#### Patrick R. Clancey v. The People of the State of Illinois.

1. Intoxicatin a Liquors— What is a Sale of, Within a Given Coun i y. —Where an order is taken for intoxicating liquor in one count}' and sent to a wholesale dealer in another, the delivery by the wholesale dealer to the common carrier consummates the sale in the county where the order is accepted by such dealer at the point of shipment.

Indictment for Illegal Sales of Intoxicating Liquors. — Error to the County Court of Douglas County; the Hon. William H. Bassett, Judge, presiding. Heard in this court at the May term, 1901.

Reversed and remanded.

Mr. Justice Weight dissenting.

Opinion filed December 10, 1901.

Eckhart & Moore and N. C. Lyrla, attorneys for plaintiff in error.

John H. Chadwick, State’s Attorney, and Roy F. Hall, attorneys for defendant in error.

Mr. Presiding Justice Harker

delivered the opinion of the court.

The plaintiff in error was indicted and convicted upon a charge of selling intoxicating liquor in less quantities than one gallon, in Douglas county, in violation of the first section of the dram-shop act.

The evidence shows that for some months prior to his indictment, the plaintiff in error was engaged in traveling and soliciting orders for the sale of intoxicating liquors for one Thomas Coffey, a liquor dealer, whose place of business was in Champaign, Illinois. His method of doing business was to solicit orders from divers persons and when given, send or deliver them to his principal at Champaign, who in turn would fill the orders and ship the liquor, by freight or express, to parties ordering. In that way several *304packages of liquor were sold and delivered to parties residing in Tuscola, Douglas county, Illinois. In some instances the sales were made upon credit; and collections were subsequently made by the plaintiff in error when he again visited Tuscola. In other cases a bill of lading was attached to a sight draft and sent to the First National Bank of Tuscola, to be taken up and paid before the purchaser could get the goods.

It does not appear that the plaintiff in error acted otherwise than as the traveling salesman and agent of Coffey. In every sale testified to, the consignment was made by Coffey directly to and in the name of the purchaser as consignee at Tuscola. Every consignment was made by him at Champaign, and the purchaser paid the express or freight charges. We are unable, therefore, to see any room for serious contention that the sales were consummated in Douglas countv.

To constitute a sale of personal property, especially under a penal statute, delivery is essential. Orders for goods may be received, but until they are transferred or set apart to the purchaser the sale is incomplete. It is a familiar rule that the delivery of goods by the vendor to a common carrier is generally deemed a delivery to the consignee. An application of that rule makes every sale of liquor disclosed by this record, a sale in Champaign county. We are constrained to hold, therefore, that where an order is taken for intoxicating liquor in one county and sent to a wholesale dealer, in another, the delivery by the wholesale dealer to the common carrier consummates the sale in the county where the order was accepted by the dealer at the point of shipment. We are supported in such holding by the following authorities : Finch v. Mansfield, 97 Mass. 89; Garbracht v. Commonwealth, 96 Penn. St. 449; Brechwald et al. v. The People, etc., 21 Ill. App. 213; Village of Coffeen v. Huber, 78 Ill. App.456. In Brechwald et al. v. The People, etc., the dealers resided in Knox county, received orders for liquor at various times from one Phillips, a resident of McDonough county, then filled the orders and sent the packages C. O. D. to *305Phillips. They were prosecuted and convicted of unlawful sales in McDonough county but this court reversed the judgment, holding that the sales were in Knox county.

We are unable to see any difference, in principle, between the sales made on a credit and those where the purchasers were required to pay a sight draft before getting the goods. In either case the sale was consummated in Champaign county and a conviction could not be had legally in Douglas county. Reversed and remanded.

Mr. Justice Weight dissents.