
    The State vs. Aikin.
    In a suit for the penalty given by law for hawking and peddling with out license, the declaration must aver that the defendant was a “hawker and pedlar.”
    This was an action of debt, in the name of the State, for the penalty of one hundred dollars, for hawking and peddling without license. The declaration states, that the defendant, not having a merchant’s license, nor a license to hawk and peddle, did sell and vend, by retail, divers articles of goods, wares and merchandise; and did barter and exchange divers articles of goods, wares and merchandise to divers persons; the said goods, wares and merchandize so sold and bartered not being of the growth and manufacture of the State of Tennessee.”
    A verdict and judgment were rendered against the defendant in the county court of-county. The de- - . . J . j. ... lendant prosecuted a writ ot error to the circuit court, where the judgment was reversed, and judgment entered for the defendant, from which judgment the State prosecuted an appeal in the nature of a writ of error to this court.
    
      W. B. Campbell, Attorney General for the 5th Soli-citorial district, for plaintiff in error.
    
      •M’Cormack and Turney, for defendant in error.
   Catron, Ch. J.

delivered the opinion of the court.

In the case of Bumpass vs. Greer, (Martin and Yerger’s Rep. 94,) the declaration alleged, “that Greer did sell and retail articles of merchandise without first obtaining license.” On this declaration the court held, “thatby the acts of 1803, ch. 3, sec. 4 and 5; 1804, ch. 11, sec. 2; and 1813, ch. 98, sec. 4, 5, and 21, only persons of a particular character, or engaged in specified pursuits are liable to the action. The persons subject to the act are merchants, hawkers and pedlars. Nothing is more natural then, than that the court, before they can consent to enter judgment against the defendant, should desire to know whether he is a merchant, hawker or pedlar, for they are not willing to pronounce such judgment against a citizen who has retailed articles of merchandize, unless he came within these denominations.”

“The plaintiff in an action must exhibit in bis declaration a title to what he claims. He has no such title except against a merchant, hawker or pedlar. Want of title is not cured in any case by verdict.”

The decision further holds, that all persons are exempted* from the penalty unless they are merchants, pedlars or hawkers.

The legislature taxed a vocation, and inflicted a pen-ally for the violation of the revenue law. Act of 1813, ch 93, sec. 5; 1819, ch. 37. Tlie act of 1813 dedares, as does the act of 1803, ch. 3, “If any hawker or pedlar shall offend against the provisions of the act, he shall forfeit and pay one hundred dollars, to be recovered by action of debt,” &c. The act of 1804, ch. 11, sec. 2, declares, “that in order to explain and remove all doubts, it is hereby declared that each and every person, whose known vocation is that of selling goods, wares or merchandize, by peddling or hawking from one part of the country to another, (not of his or their own manufacture) shall be considered liable to the penalties set forth in the act of 1803, and that no other description of citizens shall be considered as coming within its purview or meaning.

This description of a hawker or pedlar, designates the avocation to be taxed, as well as the person subject to the penalty for failing to pay the tax. The act of 1804 applies to,, and furnishes the object of taxation for the operation of all the subsequent revenue laws, equally whir that of 1803, ch. 3. The petty harrassments that grew out of persons being sued for retailing small quantities of groceries or manufactured articles, and the seeming prohibition that cut off all traffic amongst all neighbors, resulted in the act of 1804. A pedlar or hawker, whoso known avocation is such, is liable to the penalty; and if he offended against the revenue laws, he may be sued. Against him the plaintiff has title and none other. He must, therefore, allege the defendant to be a hawker or pedlar, for many persons may sell small articles and not be hawkers or pedlars. The judgment of the circuit court will therefore be affirmed.

Judgment affirmed.  