rescind the contract and recover all money paid thereon. And it has been held that a purchaser of land at an execution sale, where the judgment on which the execution issued is void, and the sale consequently void, may recover from the judgment creditor the purchase money paid at such sale. But in absence of statute, the purchaser of a tax deed or certificate which proved invalid cannot recover the purchase price from the county, municipality, or other taxing body under the authority of which the sale was made, since the rule of caveat emptor applies.3 212. Unearned Freight; Unearned Insurance Premium.-The settled doctrine in this country is that freight paid in advance is not earned unless the voyage is performed, and that the shipper may recover it back, if for any fault not imputable to him the contract is not fulfilled. In the case of a payment of a premium on an insurance policy which is void the rule is that if the policy never attaches because of a breach of a condition precedent, the insurer never assumes any risk of loss, and never earns any part of the premium. While there is some conflict of authority, under such conditions the proper rule is that the insured, if he has not been guilty of fraud, is entitled to recover back what he has paid to the insurance company. If the policy is not illegal, and once attaches, and the risk is assumed, the entire premium is earned, and if a forfeiture results from a breach of a promissory warranty or of a condition subsequent the insurer cannot be required to return any part of the premium. It is all earned when the risk attaches.5 213. Necessity for Demand; Liability of Agent.-Where money is paid under mutual mistake, demand, or at least notice of the error, must precede a right of recovery. The ground of this rule is quite obvious. Where the mistake is mutual, both parties are innocent, and neither is in the wrong. The party honestly receiving the money through a common mistake owes no duty to return it until at least informed of the error. It is just that he should have an opportunity to correct the mistake, innocently committed on both sides, before being subjected to the risks and expenses of a litigation. The neces sity of a demand does not therefore exist in a case where the party receiving the money, instead of acting innocently and under an honest mistake, knows the whole truth and consciously receives what does not belong to him, taking advantage of the mistake or oversight of the other party, and claiming to hold the money thus obtained as 1. Ankeny v. Clark, 148 U. S. 345, 13 S. Ct. 617, 37 U. S. (L. ed.) 475. 2. Henderson v. Overton, 2 Yerg. (Tenn.) 394, 24 Am. Dec. 492. 3. Lisso v. Police Jury, 127 La. 283, 53 So. 566, 31 L.R.A. (N.S.) 1141. See TAXATION. 4. The Bird of Paradise, 5 Wall. 545, 18 U. S. (L. ed.) 662. 5. Parsons v. Lane, 97 Minn. 98, 106 N. W. 485, 7 Ann. Cas. 1144, 4 L.R.A. (N.S.) 231. And see INSURANCE, vol. 14, p. 959. his own. In such case he cannot assume the attitude of bailee or trustee, for he holds the money as his own, and his duty to return it arises at the instant of the wrongful receipt of the overpayment. He is already in the wrong and it needs no request to put him in that position. Likewise a demand is not prerequisite to the maintenance of a suit to recover money paid under compulsion, for, where money is wrongfully and illegally exacted, it is received without any legal right or authority to receive it; and the law at the very time of payment creates the obligation to refund it. An agent who has received money by mistake and who has turned the money over to his principal is not liable personally. On the other hand it is the settled doctrine of the law that where money is illegally demanded and received by an agent, he cannot exonerate himself from personal responsibility by paying it over to his principal, when he has had notice not to pay it over.10 But it has been held that notice to an agent not to pay over the money to his principal is not necessary where the payment is compulsory, and it is not made expressly for the use of the principal. Where a collector levied a tonnage duty illegally, and the same was paid compulsorily, it was held he was liable to refund the amount, notwithstanding he had paid over the money to the government, and no notice was given him not to pay over the money so collected.11 PEDDLERS I. INTRODUCTORY II. WHAT CONSTITUTES PEDDLING III. POWER TO LICENSE IV. EXTENT AND SCOPE OF POWER TO LICENS V. PEDDLING WITHOUT LICENSE 1. Scope of Article 2. Definition I. Introductory 3. Nature and Characteristics of Occupation II. What Constitutes Peddling 4. Itinerant Solicitation 5. Concurrent Sale and Delivery 6. Regular and Principal Business 7. Interest of Seller in Goods III. Power to License 8. Required by State in Exercise of Police Power 9. In Exercise of Taxing Power 10. Required by Municipal Corporation. 11. Delegation of Power to Administrative Boards IV. Extent and Scope of Power to License 12. Discrimination against Interstate Commerce 13. Transactions Which Are Parts of Interstate Commerce 14. Peddling of Goods of Foreign Origin and Patented Goods 15. Restraint of Trade 16. Discrimination Based on Residence or Citizenship of Peddler 17. Commodity and Personal Exemptions 18. Miscellaneous Classification V. Peddling without License 19. Validity of Contracts of Sale 20. Status of Peddler 21. Liability of Agent or Principal I. INTRODUCTORY 1. Scope of Article.-Peddling is a trade or occupation that has received general recognition. It is a trade that has needed and has almost universally been considered subject to regulation. But that regulation has been based entirely on statute law rather than common law. It is the purpose of this article to deal with the law particularly affecting peddlers which has grown out of the application and construction of the statute law regulating and taxing the trade. The remarkable uniformity which is characteristic of the statute law on this subject renders a general treatment not only possible but also peculiarly effective. This article considers the facts which must exist before a person can be brought within the meaning of the word "peddler" as used in a statute or ordinance; the occasion for and justification of the regulation and taxation of peddlers, the general restrictions on the power to regulate and tax this class of persons, and, finally, the result attendant on the failure of a peddler to abide by the legislative mandates. The more general principles of the law which control and affect the particular law of peddlers are found elsewhere. 2. Definition. The term "peddler" is and has been used in connection with the term "hawker," the usual phrase being "hawkers and peddlers." The words used singly or together are perfectly synonymous, and this article will use only the one expression, "peddler." The word is derived from an old Scotch word, "ped," meaning a bag, and originally defined one who went about from house to house carrying in a bag goods which he exposed for sale, sold, and delivered to whomever he might prevail on to buy. Possibly a peddler was one who went on foot exclusively. The English statute has so defined him. Certain it is that he soon outgrew that distinction, and plied his recognized trade with aid of cart and horse. To-day when there are many different methods of travel it seems clear that a peddler may adopt any one of them and yet remain a peddler." The fact of locomotion is important, but the mode is entirely immaterial. By a comprehensive and approved modern definition a peddler is one who goes from place to place and from house to house carrying for sale and exposing to sale goods, wares, and merchandise which he carries, or, better, he is an itinerant, solicitant vendor of goods who sells and delivers to consumers the identical goods which he 1. Welton v. Missouri, 91 U. S. 275, 943 et seq. 23 U. S. (L. ed.) 347. Note: Ann. Cas. 1916A 1200. 3. Note: Ann. Cas. 1912D 1294. 4. Notes: L.R.A.1916B 1293; Ann. Cas. 1912D 1290. 5. Notes: L.R.A.1916B 1303; Ann. Cas. 1912D 1291. 6. Note: Ann. Cas. 1912D 1290. carries with him." The word "dealer" is sometimes used in contrast with the word "peddler" as denoting one who buys and sells at his place of business; an "itinerant dealer," on the other hand, has been defined as one who travels from place to place while engaged in his business of selling, and would doubtless in many instances be construed to embrace "peddlers." "8 3. Nature and Characteristics of Occupation.-The occupation of peddling has been widely followed, particularly in the earlier days before modern facilities of rapid and easy communication and travel were introduced, and those following it have received general and very uncomplimentary notice. They have been in disfavor because of their annoying methods of solicitation, their financial irresponsibility growing, largely, out of their transient nature and their tendency to defraud in the sale of their own goods and to commit crimes collateral to their admittance to homes of householders. They were early defined thus: "those deceitful follows who went from place to place, buying and selling brass, pewter and other goods and merchandise, which ought to be uttered in open market, were of old so called; and the appellation seems to grow from their uncertain wandering, like persons that with hawks seize their game where they can find it." Communities have learned to regard with apprehension the intrusive domiciliary visitation, the relentless pursuit of the purchaser, the practiced and persistent itinerant salesman adroitly pressing his wares on the attention of those who most often neither need nor wish for them, but who are unable to resist the wiles or penetrate the deceptions practiced on them.10 Sales by peddlers are often accompanied by cheating or fraud,11 and it has been said that resort is often had to the business for the sole purpose of obtaining admittance into private dwelling houses in furtherance of some criminal or unlawful object. 12 Not the least of the difficulties of the peddler 7. Davenport v. Rice, 75 Ia. 74, 39 N. W. 191, 9 A. S. R. 454; St. Paul v. Briggs, 85 Minn. 290, 88 N. W. 984, 89 A. S. R. 554; Potts v. State, 45 Tex. Crim. 45, 74 S. W. 31, 2 Ann. Cas. 827; State v. Bayer, 34 Utah 257, 97 Pac. 129, 19 L.R.A.(N.S.) 297. Notes: 37 A. S. R. 650; 46 A. S. R. 461, 723; 89 A. S. R. 557, 886; 129 A. S. R. 277. 8. Note: Ann. Cas. 1917A 953. 9. Morrill v. State, 38 Wis. 428, 20 Am. Rep. 12, reversed on another point in 154 U. S. 626, 14 S. Ct. 1206, 23 U. S. (L. ed.) 1009. 10. Graffty v. Rushville, 107 Ind. 502, 8 N. E. 609, 57 Am. Rep. 128: South Bend v. Martin, 142 Ind. 31, 41 N. E. 315, 29 L.R.A. 531; Com. v. Gardner, 133 Pa. St. 284, 19 Atl. 550, 19 A. S. R. 645, 7 L.R.A. 666; Titusville v. Brennan, 143 Pa. St. 642, 22 Atl. 893, 24 A. S. R. 580, 14 L.R.A. 100, reversed on another point in 153 U. S. 289, 14 S. Ct. 829, 38 U. S. (L. ed.) 719; Pomeroy v. Rutherford, 80 Wash. 43, 141 Pac. 178, L.R.A. 1916B 1291. 296, 15 S. Ct. 367, 39 U. S. (L. ed.) 11. Emert v. Missouri, 156 U. S. 430; Ex parte Case, 70 Ore. 291, 135 Pac. 881, 141 Pac. 746, Ann. Cas. 1916B 490; State v. Bayer, 34 Utah 257, 97 Pac. 129, 19 L.R.A. (N.S.) 297. 12. Emert v. Missouri, 156 U. S. |