634. the time of sale. Citizens' Bank v. Crittenden | lents in law. "Hawkers" and "peddlers" are Record-Press, 150 S. W. 814, 815, 150 Ky. persons who carry merchandise from place to place for sale, as opposed to "traders," who sell at an established shop. City of St. Louis v. Meyer, 84 S. W. 914, 918, 185 Mo. 583 (citing Hall v. State, 23 South. 121, 39 Fla. 668; Commonwealth v. Ober, 12 Cush. [66 Mass.] 493; Bish. St. Crimes, § 1074; Fisher v. Patterson, 13 Pa. 336; City of South Bend v. Martin, 41 N. E. 315, 142 Ind. 31, 29 L. R. A. 531; Emert v. Missouri, 15 Sup. Ct. 367, 156 U. S. 296, 39 L. Ed. 430). Hawker synonymous Mere delivery of goods to a customer is not "peddling," within Ky. St. 1903, § 4215, requiring peddlers to take out licenses; "peddling" consisting in hawking goods about and offering and selling to any one who will buy. Commonwealth v. Standard Oil Co., 112 S. W. 902, 904, 129 Ky. 744. A foreign manufacturer of ranges employed traveling salesmen to take orders in Arkansas. The orders were forwarded to a division superintendent in Arkansas, who investigated the credit of the buyers. The ranges were shipped by the manufacturer to Arkansas to fill the orders secured, and deliveries were made by employés called deliverymen. Held, that the traveling salesmen and the deliverymen were "peddlers," within the peddling statute of 1909, requiring a license of persons traveling through any county peddling or selling enumerated goods. Crenshaw v. State, 130 S. W. 569, 570, 95 Ark. 464. An agent of a foreign corporation engaged in making portraits by photographic enlargement, who delivers such portraits to customers who have previously ordered the same made and collects therefor, is not a "peddler" or "hawker" within the meaning of an ordinance imposing a license tax on persons engaged in such occupations merely because, as an incident to delivery, he sells the customer a frame for the portraits if desired. "The leading primary idea of a 'hawker' or 'peddler' is that of an itinerant or traveling trader, who carries goods about in order to sell them, and who actually sells them to purchasers, in contradistinction to a trader who has goods for sale and sells them in a fixed place." Chicago Portrait Co, v. City of Macon, 147 Fed. 967, 969 (quoting and adopting definition in Emert v. State of Missouri, 15 Sup. Ct. 367, 156 U. S. 296, 39 L. Ed. 430, which quotes with approval language of Chief Justice Shaw of Massachusetts, in Commonwealth v. Ober, 12 Cush. [66 Mass.] 493). Farmer retailing crops The word "peddler," as used in a municipal ordinance providing that no person shall exercise the vocation of a peddler within the municipality without first paying an annual license, includes one peddling the produce of his own farm or garden, as well as one peddling farm or garden products which he has purchased from others. State v. Jensen, 100 N. W. 644, 645, 93. Minn. 88. A farmer who takes his farm products to a city and sells them from place to place is not a hawker or peddler within the understood meaning of such terms. The terms "hawker" and "peddler," as used by the courts of this country are treated as equiva See Hawker. Permanent stand The statute of 1909 (Laws 1909, p. 292), providing that before any person either as owner, manufacturer, or agent shall travel through any county and peddle or sell enumerated articles, he shall procure a license, does not reach one who simply brings his wares into a county and sells them, but there must be added the element of traveling from place to place through the county for the purpose of selling. Crenshaw v. State, 130 S. W. 569, 95 Ark. 464. A person operating a lunch wagon at a fixed place in a street daily between certain fixed hours is not a "hawker" or "peddler" within a statute defining "hawkers" and "peddlers" as persons who travel about, either on foot or in wagons, carrying and exposing for sale goods. Commonwealth v. Morrison, 83 N. E. 415, 197 Mass. 199, 14 L. R. A. (N. S.) 194, 125 Am. St. Rep. 338. A hawker or peddler is an itinerant or traveling trader who carries goods about in order to sell them, and who actually sells them to purchasers by delivering the goods at the time of the sale, in contradistinction to the trader who has goods to sell and sells them in a fixed place of business. State v. Bayer, 97 Pac. 129, 131, 34 Utah, 257, 19 L. R. A. (N. S.) 297. Sales to dealers Sales of oil delivered from wagons to re tail dealers for resale are within Ky. St. 1903, § 4224, requiring payment of an annual license fee of $5 for each wagon; but sales from wagons to others than retail dealers constitute "peddling," within section 4215, requiring peddlers to take out licenses. Commonwealth v. Standard Oil Co., 112 S. W. 902, 903, 129 Ky. 744. Sales by order or sample The license taxation of commercial salesmen or travelers selling by sample or taking orders for future delivery is not germane to the license taxation of "peddlers or hawkers" selling and delivering goods carried by them on foot or on horseback, or in vehicles, or in water craft. Beary v. Narrau, 37 South. 961, 113 La. 1034. A hawker or peddler, as defined by Laws 1909, p. 293, c. 248, § 1, is one who has no fixed place of trade, but travels from place to place and from house to house, though he sells by sample and does not carry his wares with him, or even if he does not make an immediate sale, but enters into an executory contract for a future sale and future delivery. State ex rel. Mudeking v. Parr, 123 N. W. 40S, 409, 109 Minn. 147, 134 Am. St. Rep. 759. A traveling salesman, who carries samples and takes orders for brooms from merchants in lots of a dozen or more, and aft "Peddling," as used in Rev. St. Wis 1898, § 1570 et seq., as amended, prohibiting peddling without a license, included a resident of a state who traveled from house to house in a city with a single horse and wagon, taking orders for teas and coffees, etc., by means of samples carried by him, the orders being filled at a store and the parcels delivered by defendant on his next trip, such parcels being made up for each individual purchaser, no goods being delivered by him at the time of taking the orders. State v. Whitcom, 99 N. W. 468, 469, 122 Wis. 110. "Peddling" is the occupation of an itinerant peddler of goods, who sells and delivers the identical goods he carries with him. It is not the business of selling by sample and taking the order for goods to be thereafter delivered, and to be paid for, wholly or in part, upon their subsequent de livery. Neither a person exhibiting a sample of a range, nor a person making delivery of such ranges, after their sale, in the original packages, are peddlers, within the meaning of a provision in the revenue law that any person carrying a wagon, cart, or buggy, or traveling on foot, for the purpose of exhibiting or delivering any wares or mer erwards delivers the brooms, which are shipped to him from the factory, is not a "peddler" requiring a license, within Act April 16, 1903, § 50, as amended, defining as such all persons who carry goods from place to place for sale, and all persons who offer goods for sale without having a regular place of business. If he had gone from place to place in the state and taken orders for the brooms manufactured by his principal, and sent such orders to the latter at his place of business, to be filled by him, he could not be regarded as a peddler. Neither would he be a peddler if, instead of sending such orders to his principal to be filled, he had notified him of the amount of brooms necessary to fill the orders taken, and the brooms had been ship-chandise, shall be considered a peddler, and ped to him from the factory, or he had gone to the factory and gotten the goods, and filled the orders theretofore taken by him. Kloss v. Commonwealth, 49 S. E. 655, 656, 103 Va. 864 (citing Village of Stamford v. Fisher, 35 N. E. 500, 140 N. Y. 187; Commonwealth v. Ober [Mass.] 12 Cush. 493; Commonwealth v. Eichenberg, 21 Atl. 258, 140 Pa. 158; State v. Frank, 41 S. E. 785, 130 N. C. 724, 89 Am. St. Rep. 885). A foreign manufacturer of ranges employed traveling salesmen to take orders in Arkansas. The orders were forwarded to a division superintendent in Arkansas, who investigated the credit of the buyers. The ranges were shipped by the manufacturer to Arkansas to fill the orders secured, and deliveries were made by employés called deliverymen. Held, that the traveling salesmen and the deliverymen were "peddlers," within the peddling statute of 1909, requiring a license of persons traveling through any county peddling or selling enumerated goods. Crenshaw v. State, 130 S. W. 569, 570, 95 Ark. 464. A merchant in Chicago employed an agent, who solicited orders for merchandise in a city in Missouri and reported the orders. The merchant put up each article ordered in a package, and all the packages were shipped to the agent, who took the goods from the depot and delivered them to the customers and collected the price. Held, that the agent was not a "peddler," within an ordinance of the city imposing a license for selling merchandise from wagons. Jewel Tea Co. v. Lee's Summit, Mo., 189 Fed. 280, 281. imposing a license tax. Wrought Iron Range Co. v. Campen, 47 S. E. 658, 664, 135 N. C. 506. An agent of a corporation, having its place of business in another state, took or ders for unframed crayon portraits to be made at the corporation's place of business, and left with each purchaser a memorandum of the agreement which recited that a certain price should be paid for the portrait on delivery, and that, while the purchaser was not obliged to take a frame, all portraits would be delivered in frames. Subsequently defendant delivered the portraits as agent of the corporation, and urged the purchasers to purchase the frames. The facts warranted a finding that defendant was within Rev. St. 1899, §§ 8861, 8862, 8868, making it a misdemeanor to deal as a peddler without a license and defining a peddler as one selling goods, wares or merchandise, by going from place to place to sell the same. Looney, 97 S. W. 934, 936, 214 Mo. 216, 29 L. R. A. (N. S.) 412. State v. A city ordinance made it an offense to pursue the occupation of a hawker or peddler, without a license, and defined a hawker or peddler as including any person who should travel from house to house for the purpose of selling, offering for sale, or soliciting orders for goods, wares, or merchan dise, by sample. A New Jersey corporation engaged in the sale and distribution of teas and spices maintained a warehouse in another city in Michigan, from which its trade in Michigan was supplied. The corporation furnished defendant with a horse and wagon, and he solicited orders from door to door, order from the purchaser was accepted by and at intervals ordered from the warehouse the agent's principal; the articles not being in Michigan sufficient goods to fill the orders, delivered until after the order was accepted, whereupon he delivered the goods, collected and the agent's only duty being to take and the price, retained a commission, and re- forward the order and explain his scheme of mitted the balance. Held, that not having contest therefor, to be conducted by the purhad a license, he was properly convicted un- chaser. Held, that the notes sued on were der the ordinance. City of Alma v. Clow, 109 not "peddlers' notes," within the statute. N. W. 853, 146 Mich. 443. Citizens' Bank v. Crittenden Record-Press, A traveling soliciting agent who takes orders for goods similar to his samples subject to the approval of his employer who, upon approval of the orders, prepares the goods for delivery and turns them over to him for delivery which he makes, collecting and remitting the price, is not within the statute imposing a tax on peddlers and defining "peddlers" to include all transient merchants and itinerant venders, selling by sample, or by taking orders whether for immediate or future delivery. State v. Bristow, 109 N. W. 199, 200, 131 Iowa, 664. Sales to regular customers An oil company, which fills tanks of regular customers every week under a standing order, is not a "peddler," within Ky. St. 1903, § 4215, requiring "peddlers" to take out licenses. Commonwealth v. Standard Oil Co., 112 S. W. 902, 903, 904, 129 Ky. 744. Single sale A single sale of merchandise by a person does not establish the fact that he is a "peddler." City of Kinsley v. Dyerly, 98 Pac. 228, 229, 79 Kan. 1, 19 L. R. A. (N. S.) 405 (quoting and adopting definition in City of Kansas v. Collins, 8 Pac. 865, 34 Kan. 434). PEDDLER'S NOTES Notes given for the exclusive right to sell articles in a certain territory are "peddler's notes," within a statute making void a note given for rights by a peddler, unless indorsed "peddler's note." McAfee v. Mercer Nat. Bank (Ky.) 104 S. W. 287. Ky. St. § 4223, makes notes given to a peddler void if not so indorsed thereon. Section 4216 defines as peddlers itinerant persons vending goods, wares, and merchandise, jewelry, and other things not therein specifically exempt; and section 4218 exempts from the previous section tinware, agricultural implements, sewing machines, portable mills, books, meat, etc., and things sold by sample by merchants. Section 4224, fixing the amount of the license tax paid by peddlers, provides that one with a two-horse wagon should pay a certain sum, one on horseback another sum, and one on foot, carrying articles on his person, another sum. The notes sued on were given for an automobile, dinner sets, and other articles, sold to defendants by the traveling agent of plaintiff's indorser, a manufacturing company, under a contract which did not pass title until the 150 S. W. 814, 815, 150 Ky. 634. PEDERASTY As cruelty within the divorce act, see Cruelty. PEDIGREE The word "pedigree" means "a line of ancestors, and a requirement to prove lineage of an animal back of the immediate progenitors only to the grandparents was a limitation of proof, rather than an extension. Borden v. United States, 132 Fed. 205, 206. The term "pedigree" includes the facts of birth, marriage, and death and the times when such events happened. Rowan v. State, 124 S. W. 668, 670, 57 Tex. Cr. R. 625, 136 Am. St. Rep. 1005. "The term 'pedigree' embraces not only descent and relationship, but also the facts of birth, marriage, and death, and the times when these events happen." Topper v. Perry, 95 S. W. 203, 205, 197 Mo. 531, 114 Am. St. Rep. 777 (citing Copes v. Pearce [Md.] 7 Gill, 247); Imboden v. St. Louis Union Trust Co., 86 S. W. 263, 267, 111 Mo. App. 220 (quoting and adopting the definition in Copes v. Pearce [Md.] 7 Gill, 247). "The term 'pedigree,' however, embraces not only descent and relationship, but also the facts of birth, marriage, and death, and the times when these events happened. These facts therefore may be proved in the manner above mentioned, in all cases where they occur incidentally and in relation to pedigree. Thus, an entry by a deceased parent or other relative, made in a Bible, family missal, or any other book, or in any document or paper, stating the fact and date of the birth, marriage, or death of a child or other relative, is regarded as a declaration of such parent or relative in a matter of pedigree." Travelers' Ins. Co. v. Henderson Cotton Mills, 85 S. W. 1090, 1091, 117 Am. St. Rep. 585, 9 Ann. Cas. 162 (quoting and adopting definition in 1 Greenl. Ev. § 104). "Pedigree' is the history of family descent, which is transmitted from one generation to another by both oral and written declarations, and, unless proved by hearsay evidence, not competent in general issues, it cannot in most instances be proved at all. Matters of 'pedigree' consist of descent and relationship evidence by declarations of particular facts, such as births, marriages, and deaths." Layton v. Kraft, 98 N. Y. Supp. 72, ( PENAL 74, 111 App. Div. 842. "Pedigree" is the history of the family descent, which is transmitted from one generation to another both by oral and written declarations, and, unless proved by hearsay evidence, it cannot in most instances be proved at all. Hence declarations of deceased members of a family, made ante litem motam, are received to prove family relationship, including marriages, births, and deaths, and the facts necessarily resulting from those events. Before the declarations can be received as evidence of pedigree it must appear that the person making them was a member of the family, and that he is dead, incompetent, or beyond the jurisdiction of the court. An entry in a family record of the age of a child, made by, or at the instance of, her father, is not admissible in evidence where he is alive and is a witness in the case. State v. Miller, 80 Pac. 51, 52, 71 Kan. 200, 6 Ann. Cas. 58 (quoting Young v. Shullenberg, 59 N. E. 385, 165 N. Y. 385, 80 Am. St. Rep. 730). PEDIS POSSESSIO An obligation is "penal" in substance when its amount is measured neither by the obligee's loss nor by the valuation placed by him upon what he has given in exchange. In re Caponigri, 193 Fed. 291, 292. The words "penal" and "penalty" strictly and primarily denote punishment, whether corporal or pecuniary, imposed and enforced by the state for a crime or offense against its laws. Schick v. United States, 24 Sup. Ct. 826, 830, 195 U. S. 65, 49 L. Ed. 99, 1 Ann. Cas. 585 (quoting and adopting definition in Huntington v. Attrill, 13 Sup. Ct. 224, 227, 146 U. S. 657, 667, 36 L. Ed. 1123, 1127. In the municipal law of England and America, the words "penal" and "penalty" have been used in various senses. Strictly, and primarily, they denote punishment, whether corporal or pecuniary, imposed and enforced by the state for a crime or offense against its laws. But they are also commonly used as including any extraordinary liability to which the laws subject a wrongdoer in favor of the person wronged, not limited to the damage suffered. They are so ac-elastic in meaning as even to be familiarly applied to cases of private contracts wholly independent of statutes, as when we speak of the "penal sum" or "penalty" of a bond. State ex rel. Rodes v. Warner, 94 S. W. 962, 964, 197 Mo. 650; Southern R. Co. v. Melton, 65 S. E. 665, 671, 133 Ga. 277 (citing Huntington v. Attrill, 13 Sup. Ct. 224, 227, 146 U. S. 657, 667, 36 L. Ed. 1123). The phrase "pedis possessio" means tual possession. Kendrick v. Latham, 25 Fla. 819, 6 So. 871, 876; Goldberg v. Bruschi, 81 Pac. 23, 25, 146 Cal. 708. PEERS See Judgment of His Peers. PEN. In a verdict fixing punishment at three years in the "pen.," the word "pen." is an abbreviation of the word "penitentiary." Denham v. Commonwealth, 84 S. W. 538, 539, 119 Ky. 508. PEN In an action against a railway company for damages for keeping plaintiff's cattle at a certain station in muddy "pens," without feed and water, etc., the proof showed that the cattle were kept in what was known as the "quarantine lane," which was from 100 to 300 yards wide and about one mile in length, through which cattle received might be driven from the pens in the Cherokee Nation to the Osage Nation and avoid the quarantine regulations. Held, that "a 'pen,' in the sense under consideration, is but an inclosure of greater or less dimensions, and with no requisite form," and, since the lane was inclosed and seems to have been but an extension of what was generally designated as the pens, the evidence was admissible under the allegation. Atchison, T. & S. F. Ry. Co. v. A. S. Veale & Co., 87 S. W. 202, 203, 39 Tex. Civ. App. 37. Criminal distinguished "Penal" is a much broader term than "criminal" and includes many statutory enforcements of police regulations the violations of which are in no sense crimes. Marter v. Kepp, 77 Atl. 1030, 1031, 80 N. J. Law, 530. PENAL ACTION A civil action brought under Laws 1879, c. 47, against bank officers for the recovery of deposits received by them while the bank is insolvent or in a failing condition, is upon a liability created by statute, and is not a "penal action," and is governed by the three years' statute of limitations. Frame v. Ashley, 53 Pac. 474, 475, 59 Kan. 477. "A 'penal action' is a civil suit brought for the recovery of a statutory forfeiture when inflicted as punishment for an offense against the public." Such actions are "civil actions," on the one hand closely related to criminal prosecutions and on the other to actions for private injuries in which the party aggrieved may, by statute, recover State ex rel. McNamee v. punitive damages. Stobie, 92 S. W. 191, 212, 194 Mo. 14. A proceeding, authorized by Acts 31st Leg. c. 17, §§ 9a, 9b, 9c, 9f, 9g, for the revo cation by the Comptroller of Public Accounts | of liquor licenses for violations of the law by liquor dealers is not a suit by the state for a "forfeiture" or "penalty," within Const. art. 5, 88, conferring on the district court exclusive jurisdiction of such suits; for, though an official act may be judicial as involving the exercise of discretion and judgment, yet, when discretion is conferred on an executive officer in the discharge of administrative or executive duties, the acts of the officer are A "penal statute" is one which inflicts a forfeiture for transgressing its provisions. It affords a remedy and supplies defects in the common or statutory law. It involves the idea of punishment, and its character is not changed by the mode in which it is inflicted, whether by civil or criminal procedure. Lagler v. Bye, 85 N. E. 36, 37, 42 Ind. App. 592. A "penal statute" is one which enforces a forfeiture or penalty for transgressing its not judicial. Baldacchi v. Goodlet (Tex.) provisions or doing a thing prohibited. "Pe145 S. W. 325, 328. An action under section 7 of the AntiTrust Law, Act July 2, 1890, c. 647, 26 Stat. 210, providing that any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by the act may sue therefor in any Circuit Court of the United States, and shall recover threefold the damages by him sustained, is not a "penal action" within the meaning of Rev. St. 1047, prescribing a limitation of five years for a suit or prosecution for any penalty or forfeiture, pecuniary or otherwise, accruing under the laws of the United States. But the action is one for the enforcement of a civil remedy given by statute for a private injury, compensatory in its purpose and effect. City of Atlanta V. Chattanooga Foundry & Pipe Works, 127 Fed. 23, 29, 61 C. C. A. 387, 64 L. R. A. 721. As civil action See Civil Action, Case, Suit, etc. As prosecution See Prosecution. As qui tam action See Qui Tam Action. PENAL BOND At common law a "penal bond" conditioned for the payment of money was an obligation to pay a certain sum of money on a day certain under penalty of a larger sum, usually, but not necessarily, double the principal. A bond to pay a monthly allowance to the obligor's wife as alimony is a simplex obligation and not a penal bond. Burnside v. Wand, 71 S. W. 337, 342, 347, 170 Mo. 531, 62 L. R. A. 427. PENAL LAWS See Breach of Penal Laws. A "penal law" "denotes punishment, whether corporal or pecuniary, imposed and enforced by the state for a crime or offense against its law." Cary v. Schmeltz, 125 S. W. 532, 533, 141 Mo. App. 570 (quoting and adopting definition in Huntington v. Attrill, 13 Sup. Ct. 224, 146 U. S. 657, 36 L. Ed. 1123; citing Black, Interp. Laws, 292; Whitman v. National Bank of Oxford, 20 Sup. Ct. 477, 176 U. S. 559, 44 L. Ed. 587). nal" is a much broader term than "criminal" and includes many statutory enforcements of police regulations the violations of which are in no sense crimes. Marter v. Repp, 77 Atl. 1030, 1031, 80 N. J. Law, 530. Penal laws are those imposing a punishment for an offense against the state, and which are subject to the pardon power. Where statutes or valid rules give one person a private right against another, neither the liability nor the remedy is, in general, strictly or properly penal. State v. Atlantic Coast Line R. Co., 47 South. 969, 980, 56 Fla. 617, 32 L. R. A. (N. S.) 639. "Penal statutes," strictly and properly, are those imposing punishment for an offense against the state. And the expression "penal statutes" does not ordinarily include statutes which give a private action against a wrongdoer. Davis v. Mills, 121 Fed. 703, 704, 58 C. C. A. 123 (citing Plumb v. Griffin, 50 Atl. 1, 74 Conn. 132). "Penal statutes" are "such acts of Parliament whereby a forfeiture is inflicted for transgressing provisions therein enacted," otherwise defined as such statutes as inflict a forfeiture of money or goods by way of penalty for breach of their provisions and not by way of fine for a statutory crime or misdemeanor. State ex rel. McNamee V. Stobie, 92 S. W. 191, 212, 194 Mo. 14 (quoting and adopting definition in 3 Black. Com. 160). "Penal statutes" are those by which punishments are imposed for transgressions of the law. They are construed strictly and more or less so according to the severity of the penalty. But the provisions that enforce the wrong for which a penalty is provided, and those which define the punishment, are penal in their character and are construed accordingly. And the same statute may be remedial for certain purposes and liberally construed therefor and at the same time be of such a nature and operate with such harshness upon a class of offenders subject to it that they are entitled to invoke the rule of strict construction. Casey v. St. Louis Transit Co., 91 S. W. 419, 424, 116 Mo. App. 235 (quoting and adopting the definition in 2 Suth. St. Const. [2d Ed.] § 337). "Penal laws" are those imposing punishment for an offense against the state, and which, by the American and English Consti |