by them. The sewing machine was made and sold in another state, shipped to North Carolina in its original package for delivery to the consignee upon payment of its price. It had never become commingled with the general mass of property within the state. While technically the title of the machine may not have passed until the price was paid, the sale was actually made in Chicago; and the fact that the price was to be collected in North Carolina is too slender a thread upon which to hang an exception of the transaction from a rule which would otherwise declare the tax to be an interference with interstate commerce."

further adverted to in view of prior deci- | almost too numerous for citation, and the sions of this court relating to the identical one under consideration is clearly controlled question here presented. In Caldwell v. North Carolina, 187 U. S. 622, 47 L. ed. 336, 23 Sup. Ct. Rep. 229, the facts were these: The Chicago Portrait *Company shipped to Greensboro, North Carolina, by rail, consigned to its order, certain pictures and frames. At Greensboro the company had an agent who received the merchandise, put the pictures and frames together, and delivered them to the purchasers who had ordered them from Chicago. The contention was that the portrait company was liable to a license charge imposed by the town of Greensboro for selling pictures therein, and this was supported by the argument that, although the contract for sale was made in Chicago, it was completed in North Carolina by the assembling of the pictures and frames, and the delivery there made. It was held that the license could not be col-inating taxes on merchandise shipped from lected, because the transaction was an interstate commerce one. In the course of the opinion, after a full review of the authorities, it was observed (p. 632, L. ed. p. 341, Sup. Ct. Rep. p. 233):

"It would seem evident that if the vendor had sent the articles by an express company, which should collect on delivery, such a mode of delivery would not have subjected the transaction to state taxation. The same could be said if the vendor himself, or by a personal agent, had carried and delivered the goods to the purchaser. That the articles were sent as freight, by rail, and were received at the railroad station by an agent, who delivered them to the respective purchasers, in nowise changes the character of the commerce as interstate."

The controlling force of the two cases last reviewed upon this becomes doubly manifest when it is borne in mind that the power of the states to levy general and undiscrim

one state into another may attach to such merchandise before sale in the original package when the merchandise has become at rest within the state, and therefore enjoys the protection of its laws, and this upon the well-recognized distinction that the movement of merchandise from state to state, whilst constituting interstate commerce, is not an import in the technical sense of the Constitution. American Steel & Wire Co. v. Speed, 192 U. S. 500, 48 L. ed. 538, 24 Sup. Ct. Rep. 365.

As from the foregoing considerations it results that the court below erred in refusing to apply and enforce the commerce clause of the Constitution of the United States, its judgment must be reversed.

The judgment of the Supreme Court of Iowa is reversed, and the cause is remanded to that court for proceedings not inconsist ent with this opinion.

Mr. Justice Harlan dissents.

In Norfolk & W. R. Co. v. Sims, 191 U. & 441, 48 L. ed. 254, 24 Sup. Ct. Rep. 151, these were the facts: A resident of North Carolina ordered from a corporation in Chicago a sewing machine. The machine was shipped under a bill of lading to the order of the buyer, but this bill of lading was sent to the express agent at the point of delivery in North Carolina, with instructions ADAMS EXPRESS COMPANY, Piff. in

to surrender the bill on payment of a C. O. D. charge. The contention was that the consummation of the transaction by the express agent in transferring the bill of lading upon payment of the C. O. D. charge was a sale of the machine in North Carolina, which subjected the company to a license tax. The contention was held untenable. Calling attention to the fact that the contract of sale was completed as a contract in Chicago, and after reviewing some of the authorities on the subject of interstate commerce, the court said (p. 450, L. ed. p. 258, Sup. Ct. Rep. p. 154):

"Indeed, the cases upon this subject are

Err.,

D.

(196 U. S. 147)

STATE OF IOWA.

Error to state court-decision on non-Federal ground-commerce — -C. O. D. shipments of intoxicating liquors—when subject to seizure under state law.

This case is governed by the decision in Amer. ican Express Company v. Iowa, ante, p. 182.

[No. 82.]

Argued December 2, 1904. Decided January
S, 1905.

00

N ERROR to the Supreme Court of the upon which the price was to be collected

I state of lowa to review a judgment which under a C. O. D. arrangement, the defend

affirmed a judgment of the District Court of Madison County of that State, entered upon a verdict finding an express company guilty of maintaining a nuisance in holding for delivery to the consignees intoxicating liquors shipped C. O. D. from other states. Reversed and remanded for further proceedings.

ant must be found guilty of keeping and maintaining a place for the sale of intoxicating liquors within the meaning of the Iowa statutes.

On appeal to the supreme court of Iowa from the judgment of conviction the action of the trial court was approved upon the authority of the case of the State of Iowa

See same case below (Iowa), 95 N. W. against the American Express Company,

1129.

The facts are stated in the opinion.

Mr. Lawrence Maxwell, Jr., for plaintiff in error.

and at bar it was conceded that the issues in this case "are identical in every particular" with those which were involved in that case. As we have just reversed the judg

Mr. Charles W. Mullan for defendant ment of the supreme court of Iowa in the in error.

Mr. Justice White delivered the opinion of the court:

The judgment of the Supreme Court of Iowa is reversed, and the cause is remanded to that court for proceedings not inconsistent with this opinion.

American Express Company Case (196 U. S. 133, 25 Sup. Ct. Rep. 182, 49 L. ed. 417), it follows, for the reasons stated in This was an indictment against the Ad-in this must also be reversed. the opinion in that case, that the judgment ams Express Company, in a court of Iowa, for maintaining a nuisance in violation of a section of the Code of that state. It was charged in the indictment, in substance, that the Adams Express Company, between July and December, 1900, at St. Charles, Madison county, Iowa, used a building for the purpose of selling intoxicating liquors therein, contrary to law, and that the company owned and kept in said building intoxicating liquors with the intent unlawfully to sell them within the state, contrary to an Iowa statute. There was a plea of not guilty, a trial and verdict of guilty, and a sentence imposing a fine of $350 and costs.

An agreed statement of facts was stipulated, from which it appears that the Adams Express Company was a common carrier, engaged in the express business between the states of Missouri and Iowa; that it received the liquor in question at St. Joseph, Missouri, to be carried to St. Charles, Iowa, there to be delivered to the consignees, whose names were upon the packages, and that each and all were marked C. O. D.,meaning that they were not to be delivered by the express company to the consignees until the purchase price and the express charges were paid to the agent of the express company. It was further recited in the statement of facts that the only connection of the Adams Express Company with the transaction or transactions in relation to said liquors was as a common carrier, having received the same in Missouri for carriage to the consignees at St. Charles, Iowa.

The trial court charged the jury, in substance, that if, from the evidence, it appeared, beyond a reasonable doubt, that the defendant express company held at its depot, for delivery to the consignees, packages of liquor shipped from other states,

Mr. Justice Harlan dissents.

(196 U. S. 175)

ADOLFO SIXTO, Plff. in Err.,

v.

LAUREANO SARRIA. Payment-effect of, to discharge liability when made pursuant to decree-trialprovince of court and jury.

1.

Payments by a mortgagor to the person who has been decreed the heir ab intestato of the mortgagee in proceedings under the Porto Rico Code, §§ 976-980, are not made at the risk of being required to respond to others who may subsequently be found to be coheirs because the decree expressly reserved the rights of third parties.

2. Payment of debts due an intestate to the legally declared heirs is not made at the risk of being required to respond to others who may within five years establish a right to the property, because the Porto Rico Mortgage Law provides that property acquired through inheritance or legacy cannot be cleared until five years from the date of recording; but the effect of the proceedings to designate the heirs ab intestato is, under the Porto Rico Code, 1000, 1001, to permit them, after final decision, to receive and collect the estate.

5.

decreed the sole heir ab intestato of the mortgagee in proceedings taken under Porto Rico Code, § 976-980, is a question for the jury, more than one month before maturity, and after an unsuccessful attempt by a son of the mortgagee, whose relationship was well known to the mortgagor, to establish his rights by invoking the "voluntary jurisdiction" of the court, and on the same day on which he began a "contentious" proceeding, which the court had held was his only remedy, making the adjudged heir a party de fendant, and seeking an order requiring the registrar to make a cautionary entry concerning the mortgaged property, and requiring the mortgagor to retain, at the disposition of the court, whatever sums he owed to the mortgagee's estate.

where the evidence shows that it was made

After a judgment of an appellate court reinstating an order of the court below by which instalments due under a mortgage had been directed to be paid into court, pending the determination of the rights of a party claiming to be an heir of the mortgagee, who had died intestate, the mortgagor, acting with full knowledge of this decision of the higher court, cannot discharge his liability by obtaining an order from the lower court permitting the withdrawal of his deposit to pay an assignee of the mortgage, and by paying such assignee pursuant to a decree in a suit to which the alleged heir was not a party.

[No. 40.]

tion contained the usual averments in assumpsit, of promise and default. The defendant filed a plea and amended plea to this declaration, which set up the general issue, and for further plea averred:

"And for a further and second plea to the said declaration, the defendant says that on the fifteenth day of May, eighteen hundred and ninety-two, the defendant became indebted in the sum of sixteen thousand dollars (16,000) Mexican dollars, money then current in Porto Rico, to one Manuel Sixto, on account of the purchase price of a farm situated in the island of Vieques, district of Porto Rico, and called 'Monte Santo;' that on the said fifteenth day of May, eighteen hundred and ninety-two, the defendant made and constituted a mortgage upon the said farm in favor of the said Sixto, as security for the payment of the aforesaid amount of sixteen thousand (16,000) Mexican dol lars, together with a certain interest as stipulated in the said instrument of mortgage; that thereafter the said mortgage was duly registered in the registry of property of Humacao, Porto Rico, on the eleventh day of July, eighteen hundred and ninety-two; that the payment of the aforesaid sum of sixteen thousand (16,000) Mexican dollars, as provided for in the said instrument of

Submitted November 3, 1904. Decided Jan-mortgage, was to be made in the manner fol

IN

uary 3, 1905.

IN ERROR to the District Court of the United States for the District of Porto Rico to review a judgment in favor of defendant in an action of assumpsit. Reversed and remanded for further proceedings.

lowing, to wit: Four thousand (4,000) dollars on the fifteenth day of May, eighteen hundred and ninety-three, and four thousand (4,000) dollars on the fifteenth day of May of the years eighteen hundred and ninety-four, eighteen hundred and ninetyfive, and eighteen hundred and ninety-six. And the defendant further says that the aforesaid Emanuel Sixto departed this life This is a writ of error bringing in review on the twenty-seventh day of November, the proceedings of the district court of the eighteen hundred and ninety-two, before any United States for the district of Porto Rico. of the instalments aforesaid had fallen due; The original action was in assumpsit, that the said Sixto died intestate, and soon brought by Adolfo Sixto, an alien and a sub-after his death, to wit, in the year eighteen ject of the King of Spain, against Laureano hundred and ninety-three, judicial proceedSarria, a citizen of Porto Rico. The dec-ings touching and respecting the settlement laration set forth in substance:

Statement by Mr. Justice Day:

That on November 27, 1892, the defendant was indebted to one Manuel Sixto, since deceased, in the sum of $16,000, Spanish money, with interest from May 15 of the same year, which sum said Sarria had promised to pay in four annual *instalments, falling due respectively on the 15th day of May of each and every year from 1893 until 1896, inclusive. That the said Manuel Sixto departed this life on November 27, 1892, leaving two children, plaintiff and one Maria Belen Sixto Melendez, as his heirs at law. That as such heir the plaintiff was entitled to one half of the indebtedness of $16,000, Spanish money, with interest at the rate of 8 per cent from May 15, 1892. The declara

and inheritance of the estate of the said Manuel Sixto, deceased, and which said proceedings are known in the law of Porto Rico as 'proceedings ab intestato,' were instituted in the court of first instance of Humacao, Porto Rico, the said court being then and there a court of record and of general jurisdiction; and the said court in said proceedings by a decree dated the fifteenth day of June, eighteen hundred and ninety-three, ordered the said defendant to pay into and deposit with the said court all sums of money then due by the said defendant to the said estate of the said Manuel Sixto, deceased, by virtue of the aforesaid mortgage; and the defendant thereupon and in obedience to the said order of the said court did, on the

twenty-second day of June, eighteen hun- | previously been declared heir ab intestato dred and ninety-three, consign and deposit of said Manuel Sixto, deceased, by the order with the said court, and did place at the dis- and decree of the proper court, to wit, the posal of the same, the sum of four thousand court of the first instance of Humacao, re(4,000) pesos of the money then current in spectively on the 21st and 23d of the month Porto Rico, and the further sum of eight of November, 1893. hundred twenty-two and fifty-two hundredths (822.52) dollars of the same kind of money, the first sum being the amount of the first instalment due May fifteenth, eighteen hundred and ninety-three, and the second sum being the interest due on the aforesaid mortgage credit up to the first of June, eighteen hundred and ninety-three. And the said decree of the said court was duly entered before the commencement of this action, and still is in full force and effect.

The additional or amended plea sets the plaintiff in error, Adolfo Sixto, preforth:

Belen answered, alleging that she had been | Sarria on June 2 by the judge of first induly declared the only heir of Manuel Sixto, stance until the resolution of the pending and that the plaintiff in error could only appeal." contest her right by a "contentious suit" (expediente contencioso).

This decision was certified to the court below in January, 1896, and in March following the solicitor of the plaintiff re

registrar that the order of June 2, 1894, was still in force, which was accordingly done, and the defendant in error made reply thereto as follows:

"Having received notice that the instalment of the mortgage had been transferred to Mr. Antonio Roig, who has recorded said transfer in the registry of property, and supposing that he will proceed to collect the same judicially as he did the previous instalment, he is unable to accept the notification, and he will appear before the au diencia in the premises."

The registrar refused to comply with the order for these reasons: "First, because, subsequent to the illegal cancelation of the cautionary notice, the property as well as the encumbrance had been transferred on the registry; and, second, because the mortgage law contained no provision regarding the form of carrying into effect such an order." Thereafter the plaintiff asked the court for a further order to the registrar, but this was denied.

The court sustained this contention, and Sixto appealed, but later abandoned the ap-quested the court to notify Sarria and the peal, and on April 4, 1894, began a suit in the form of a contentious proceeding, making Maria Belen a party defendant, and praying the court to declare him (Adolfo Sixto) an equal heir with her in the estate of Manuel Sixto, and asking the court to issue an order to the registrar of property, requiring him to make a cautionary entry in the register concerning the property affected by this suit, and also requiring the defendant in error to retain, at the disposition of the court, the sums still owing to the estate of Manuel Sixto. On June 2, 1894, a notice was accordingly issued to Sarria and one to the registrar. The one to Sarria was issued on June 5, 1894, and the one to the registrar on June 4, 1894. The defendant, Maria Belen, being notified of these orders, on June 26, 1894, answered the plaintiff's petition, and in her answer prayed that the interlocutory order of June 2, 1894, be vacated and the notices canceled. On August 30, 1894, the prayer of defendant's answer was granted by the court, and orders issued accordingly to the registrar and to Sarria, and notice was given to the solicitor of the plaintiff. On September 1, 1894, the order reached the registrar, and the order of cancelation was made on the books on September 3, 1894. On September 3, 1894, the plaintiff filed a petition for an appeal from the court's order of August 30, 1894, praying that it be allowed "in both effects," that is (Code, 383), with the effect of a review and stay of proceedings, but the judge granted the same with one effect only, that is, for a review of the judgment. In the appellate court, on November 17, 1894, that court held that the allowance of both effects had been wrongfully denied, and ordered that the appeal be considered as having been taken for both effects. On December 22, 1894, the appellate court granted a further order, that Sarria, the defendant in error, be notified of his obligation under the decree of June 2, 1894, which order was accordingly issued. On November 29, 1895, the appellate court (audiencia) rendered its decision on the merits of the appeal, and reversed the order of August 30, 1894, and reaffirmed the order of June 2, 1894, in its validity and regularity. The court used the following language:

The case proceeded to proof and argument, and on December 15, 1896, a final decision was rendered, adverse to the plaintiff, from which decree he took an appeal, which was e allowed "in both effects." The appeal was also allowed from the order denying at further order to the registrar. On Febru ary 2, 1897, the appellate court consolidated the appeals and ordered the suspension of further proceedings until final decision.

In the meantime, on April 26, 1896, by an order of the court of the first instance, Sarria was allowed to withdraw his deposit of the third instalment. The order recited that one Roig had become the purchaser from Maria Belen of the third and fourth instalments, and had recovered judgment in the audiencia against Sarria for the third instalment, and found that Maria Belen had the right to transfer these instalments, and ordered a copy of the decree to be placed in the records by the actuary.

Thus the matter remained until after the conclusion of the war with Spain, resulting in a change of sovereignty of Porto Rico.

By the military government, an order was issued abolishing the territorial audiencia, the appellate court aforesaid, creating in its place the district court of San Juan. On "That which was ordered in the decree ap- September 29, 1899, that court rendered its pealed from, regarding Mr. Laureano Sar-final decision upon both appeals, reversing ria, is hereby set aside, leaving in force the the action of the court below, and deciding requisition ordered and directed to said the plaintiff to be legally proved the heir of