Gould & Company vs. The Mayor, etc., of Atlanta. 1635. License to "peddle" may be granted to indigent or infirm persons on terms discretionary with the ordinary: Code, section 1636. Foreigners, before declaring intention to become citizens, are not to have license to "peddle:" Code, section 1637. On trying a foreigner for illegal "peddling proof of the "peddling" only is prima facie sufficient: Code, section 1638. He It is probable that no license ever was issued in Georgia for any kind of itinerant trading except peddling or selling by sample. And we have no idea that any person bringing a large stock of goods into a town or city, opening a house, and selling them out therein, was ever called or considered a peddler in Georgia, or ever obtained, or was supposed to need, a license as such. Such a trader may be a transient or itinerant person, but he is not, according to Georgia statutes, or the ordinary use of language in Georgia, an itinerant trader. However much he may itinerate with his person, he does not itinerate with his goods or his trade. He stations himself for traffic, and does not sell or offer one part of his stock here and another yonder, as does a roving trader. is like a soldier in garrison, not like a soldier in the field. He offers his stock continuously to the same public in the same place. He competes with the same rivals, subjects himself to the same police, obeys the same laws and ordinances, and pays the same taxes until his stock is exhausted. does not, perhaps, renew his stock or add to it from time to time as permanent merchants do, but quits the place when he gets through, and with another stock opens in the like way in some other state or some other city of the same state. While he trades he neither hides in a corner nor wanders from house to house, or from street to street. He establishes himself in one locality and there transacts his business. He is in a known house on a public thoroughfare. If he is taxable, there he is, and there are his goods; assess him lawfully and make him pay. If he acts as his own auctioneer, without legal authority, he can be dealt with for that; but he is not an intinerant trader because he sells at auction, though He Gould & Company vs. The Mayor, etc., of Atlanta. he may sell unlawfully. A case not very unlike the present is found in 1 McMullen's R., 40, and the facts there were held not to amount to hawking and peddling under the statutes of South Carolina, but to another prohibited class of trading. It is not improbable that some of the English statutes regulating trade and traders would come near covering this case, as those statutes have been construed in that country; but none of them are in force here, and we have never introduced even the word "hawkers" into any of our legislation. I give here some citations of the English authorities: 3 Jacob's Law Dictionary, 241; 10 Petersdorf's Abridg., 206; 1 Barn. & Ald., 100; 4 Ibid., 510, 517; 12 Price, 51, 65; 1 Young & J., 463. C. J. SHAW, in Commonwealth vs. Ober, 12 Cush. R., 195, says, "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 of business." In construing the terms itinerant traders, as found in the charter of Atlanta, we suppose them to have the meaning there that they have elsewhere in our own statutes. As Judge McCAY remarks in reference to interpreting the constitution, “Necessarily * * *we are to take words as they have, for years past, been used and understood in legislative proceedings in this state:" 42 Georgia Reports, 596. In one respect, perhaps the particular words of which we. are speaking, are extended in the charter beyond what they have ordinarily comprehended in statutes; and that is, they include, as the charter declares, not only those who trade themselves in person, but those who do so, directly or indirectly, by others: 51 Georgia Reports, 328. 4. The last question for our consideration is as to the remedy of T. Gould & Company to arrest the collection of the tax which we have adjudged illegal. Their property is now under levy, and the charge in the bill is not denied that the city authorities have threatened to issue similar executions McLaughlin vs. Maund. daily. Indeed, such would be their duty if their ordinance were valid, as they supposed it to be, and these parties were within its provisions. But the ordinance is not only invalid, but it is unique and extraordinary. It gives but one hour's indulgence, and if its whole power were hurled upon T. Gould & Company, it could, in forty days, (the length of time required to sell out their stock, taking the first as an average day) load them with $4,000 00 in executions, $4,000 in fines, and forty months of imprisonment. Although there is no effort or threat to enforce the ordinance otherwise than by levy and sale for the tax, (and that not even doubled,) yet, as the executions are probably to amount to about forty in number, and as facing even the penal possibilities of the ordinance, must, to say the least of it, be uncomfortable, we deem injunction the safer, better and cheaper mode of resisting the tax, and the most conducive to the best interest of all concerned. Let the injunction be granted. LEANDER F. MCLAUGHLIN, plaintiff in error, vs. JOHN C MAUND, defendant in error. Where an account sued on covered work done through a series of years, and the evidence disclosed that the amount of each year's work became due at the close of the years respectively, the statute of limitations commenced to run against such portions of the account from the time they became due. Statute of limitations. Accounts. Before Judge JAMES JOHNSON. Talbot Superior Court. September Term, 1875. Reported in the decision. PEABODY & BRANNON; WILLIS & WILLIS, for plaintiff in error. M. H. BLANDFORD; E. H. WORRILL, for defendant. McLaughlin vs. Maund. WARNER, Chief Justice. The plaintiff sued the defendant on an open account for work done for him and family, as a dentist, amounting to the sum of $202 60. The defendant pleaded the statute of limitations in bar of the plaintiff's action. All the items in the account, except three, amounting to the sum of $12 00, were for work done prior to the 24th of February, 1868, to-wit: in the year 1865. The three items charged after that time, was for work done in the years 1868, 1869, and 1871, respectively. The suit was commenced on the 3d of August, 1872. The plaintiff testified that the amounts due for work done in each year were due at the end of the year in which the work was done. The court charged the jury "that if they believed from the evidence that more than four years had elapsed from the end of the year in which any part of the account sued upon was made, that so much of the account was barred by the statute of limitations." To which charge the plaintiff excepted. The work for which the plaintiff seeks to recover, was done at separate and distinct times, in separate and distinct years. The amount charged for the work done in the year 1865, the plaintiff expressly states was due at the end of that year, and consequently was barred by the statute of limitations. This case does not come within the decision of this court in Walker & Company vs. Mercer & DeGraffenreid, 41 Georgia Reports, 44, in which there was a running account and mutual dealings between the parties. We find no error in the charge of the court, in view of the evidence contained in the record. Let the judgment of the court below be affirmed. Johnson et al. vs. The Griffin Banking and Trust Company et al. 55 691 58 459 59 508 59 780 64 776 66 104 67 505 LOUISA A JOHNSON et al., plaintiffs in error, vs. THE GRIF- error. 1. Land lawfully conveyed by absolute deed, with consent of the debtor's wife, 3. A legislative charter which grants to an incorporated company the power 4. A title void for usury does not acquire validity by purging the debt on reducing it to judgment after the grantor's death. 5. A general decree for the recovery of money without subjecting any specific property to its payment, though rendered by consent in settlement of litigation, is not necessarily superior to the homestead right in property which was not directly involved in the litigation. 6 Pending an application for homestead, which is resisted by a judgment creditor who holds an absolute deed to the premises that, if valid, will defeat the application, which deed is attacked for usury by the applicant, a sale of the land by the sheriff to satisfy the judgment, should be enjoined until the right to homestead is determined. Injunction. Debtor and creditor. Deed. Homestead. Usury. Title. Judgments. Before Judge HALL. Spalding county. At Chambers. June 5th, 1875. Reported in the opinion. BOYNTON & DISMUKE; HUNT & JOHNSON; D. J. BAILEY; T. W. THURMAN, for plaintiffs in error. SPEER & STEWART; E. W. BECK, for defendants. BLECKLEY, Judge. On the first of March, 1872, Johnson, the then husband of complainant, borrowed of defendant $1,500 00 and gave his acceptance, due on the first of November thereafter, for $1,722 55 691 95 795 |