in Queens county goods to be delivered outside the county? The respondent says that the deliveries in Brooklyn that are complained of were upon orders that had been previously made. He does not say where these orders were given, and the sales were effected. I shall, therefore, presume that the orders were taken on the sales in Brooklyn and grant the injunction. Under the law the place of business is licensed. A person with a place licensed in Queens county, by that fact can not make sales outside that county.

County Court, Otsego County. January, 1897. Unreported.

PEOPLE V. JEROME B. WOLCOTT.

BARNUM, Co. J. Demurrer to indictment against defendant charging him with having on the 15th day of January, 1897, at the town of Exeter in this county, unlawfully during the hours between one o'clock A. M. and five o'clock A. M., had a curtain that obstructed the view of the bar or place in a certain building where liquors were kept for sale by the defendant.

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Section 31 of Laws of 1896, Chap. 112, under which the indictment is sought to be sustained, so far as material to this case is as follows: "It shall not be lawful for any person whether having paid such tax or not to have during the hours when the sale of liquor is forbidden, any curtain, screen or blinds, opaque or colored glass, that obstructs the view from the sidewalk, alley or road in front of, or from the side or end of the building or the bar or place in such building where liquors are sold or kept for sale."

No penalty or punishment is prescribed for a violation of the provision of the statute above cited, except under the provisions of section 42 (section 34, subd. 5) of the same chapter which reads as follows:

"Section 42 (34 subd. 5).

Violations of this act generally. Any wilful violation by any person of any provision of this act for which no punishment or penalty is otherwise prescribed, shall be a misdemeanor."

It is manifest that no crime is committed under the above provision of the statute, unless the act is wilfully done.

It is claimed by the defendant that the indictment does not

charge the commission of a crime because it does not allege that the act was done wilfully.

The people claim that the indictment is in the exact language of the statute and is sufficient.

It seems to me that the exact language of the statute would embrace the words prescribing the conditions requisite to make the act criminal, and that an indictment embracing the substance of the statute should allege that the act was wilfully done. The use of the word wilfully in the section prescribing a penalty indicates that the intent is an essential ingredient of the crime.

It is said in Rice on Criminal Evidence, 399: "A crime is made up of acts and intent and those must be set forth in the indictment

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As in order to make acts criminal they must be done with a criminal mind, the existence of that criminality of mind must be alleged.

In People v. West, 106 N. Y. 295, the indictment accused the defendant of the crime of watering milk and bringing the same to a cheese factory for the purpose of making the same into cheese.

The Court says, The indictment follows the language of the statute, and the general rule is well settled that an indictment for a statutory offense, and especially when the offense is a misdemeanor, charging the facts constituting the crime in the words of the statute is good as pleading and justified putting

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the defendant on trial."

But the reasoning of this case does not apply to the case at bar. The indictment, even in case the crime charged is a misdemeanor, where the statute does not make the commission of the act a crime independent of the intent, should charge a criminal intent and the words of the statute declaring the act a crime, if done wilfully, should be embraced in the indictment if the pleader seeks to rely upon the rule as laid down in the case above cited, and in other cases cited by the district attorney.

The intent could have been alleged in general terms but there should be an allegation sufficient to amount to an accusation in effect that the act was wilfully done.

In People v. D'Argencour, 32 Hun, 179, (affirmed 95 N. Y. 631), it was objected that the indictment was defective because the intent to defraud was not alleged.

The Court says: "As the statute was framed under which the indictment was found an averment of this intent seems to have been essential, for the acts charged only constitute an offense when they have been committed with the intent to defraud It clearly contemplates the necessity of such an averment, without it the indictment was probably defective." It was also held that the intent must be alleged in People v. Lohman, 2 Barber, 221, affirmed, 1 N. Y. 382.

It was held in People v. Lowndes, 130 N. Y. 463, that "while the words used in a statute to define a crime need not be strictly pursued in the indictment, words conveying the meaning of those employed by the statute to express the ingredients of the offense, may be used. Imperfections in matter of form may be disre garded, but the substance of all that is requisite to the offense must be alleged."

In the case at bar it is requisite to make the act complained of a crime, that it be done wilfully.

An essential ingredient of the crime is that the act be done wilfully.

The indictment failing to state that the act was wilfully done fails to charge an essential element of crime under the stature and is fatally defective.

The demurrer is sustained.

County Court, Albany County, January, 1897. Reported. 19 Misc. 96.

Matter of NATHANIEL NILES v. MARTIN MATHUSA.

Liquor Tax Law-Assignability of certificate.

A liquor tax certificate is a chose in action capable of assignment, and an assignment thereof to one who advances the money for its purchase is paramount and prior to the claim of a judgment creditor.

APPLICATION for receiver in supplementary proceedings.

Henry A. Peckham, for plaintiff.

Scherer & Downs, for Hinckel Brewing Company, an intervening party.

GREGORY, J. This is a motion for the appointment of a receiver in supplementary proceedings of the defendant's property.

The defendant is a saloon keeper in the city of Albany, and duly obtained a license from the State of New York, in compliance with the Liquor Tax Law, to sell liquor, etc. In order to obtain this license he borrowed the money necessary therefor from the Hinckel Brewing Company and on June 6, 1896, executed and delivered to the brewing company the following instrument in writing:

"I hereby agree to assign, transfer and set over to the Hinckel Brewing Company, on demand, license No. 13,795, taken out in my name for and in consideration of the sum of $283.33, loaned to me for the purpose of purchasing said license, to be the property of the Hinckel Brewing Company, and until the said sum of $283.33 is paid in full the license is the property of said company."

The brewing company intervenes upon this motion, and insists that if a receiver of the defendant's property be appointed, the defendant should be ordered, or permitted, to transfer, or assign, the liquor tax certificate to it, and that the injunction issued in the supplementary proceedings be modified to that extent. The plaintiff objects to this, and claims that the title, or rights, under the liquor tax certificate should be transferred to the receiver, taking the ground that the instrument executed by the defendant to the brewing company is merely an agreement by way of collateral security, and there having been no change of position of the mortgaged or assigned property, the agreement is void under the law relating to chattel mortgages. I can not agree with this proposition. The liquor tax certificate is, in my opinion, a chose in action capable of assignment. It is the evidence of a right to do certain things under the statute, and it has a definite and fixed value on the first day of each month prior to its expiration. Chapter 112, Laws of 1896, §25.

It has been well settled in this State that a debt or chose in action may be transferred or assigned, either by parol or writing. "It matters not that the agreement on which the plaintiff relied was by parol and not in writing. The agreement was founded upon an adequate consideration, and is just as valid and effectual as if made in writing. Risley v. Phenix Bank, 83 N. Y. 318-328; 38 Am. Rep. 431. Not only can a chose in action be assigned by

parol, but a lien upon it can be created by parol." Williams v. Ingersoll, 89 N. Y. 508-521.

The question here involved has, to a certain extent, been considered in at least two cases very recently, in each of which it has been held that an assignment of a liquor tax certificate to one who advances the money for the purchase of the same is paramount and prior to the claim of a judgment creditor. Herman v. Goodson, 18 Misc. Rep. 604; Matter of Jenney, Receiver, Hiscock, J., at Special Term, at Syracuse. (Not yet reported.)

Let an order be entered appointing a receiver of defendant's property, and modifying the injunction order heretofore granted so as to permit the defendant to transfer and deliver the liquor tax certificate in question to the Hinckel Brewing Company.

Ordered accordingly.

Supreme Court, Onondaga Special Term, January, 1897. Reported. 19 Misc. 244.

Matter of the Application of ALEXANDER D. JENNEY, Receiver, Etc., of JULIUS LENZ, a Judgment Debtor, for a Writ of Mandamus.

1. Excise-Liquor tax certificate-Assignment.

A liquor tax certificate and the rights thereunder are subject to transfer and assignment.

2. Same-Need not be filed.

The statutory provision in relation to filing chattel mortgages does not apply to an assignment of a liquor tax certificate, made to secure repayment of money advanced to pay therefor and for goods purchased, especially as against a receiver of the licensee appointed in supplementary proceedings.

This is an application for a writ of peremptory mandamus directed to the county treasurer of Onondaga county, directing him to cancel a liquor tax certificate issued to the above-named debtor, Julius Lenz, and to pay to said Alexander D. Jenney, as receiver of the property of said Lenz, the pro rata amount of the tax paid for the unexpired term of said certificate.

The facts sufficiently appear in the opinion.

Thomas F. Murphy, for application.

S. B. Mead, Horace White and J. L. Cheney, opposed.