UN1TED STATES V.STARNES.

665

deed. Now, his right ·of entry would be barred in 10 years. Being thus barred, and his right of possession having thereby passed to the adverse occupant, how could the wife an action of ejectment during the coverture? If the husband is in her right-that is, through her title and by virtue of the marriage-solely seised of the right to the possession, it is clear that she could not sue; and, if it be true that a disseisin of both, and that a suit for the recovery of the wife's lands from one who holds them in adverse possession. must be'brought in the joint names of husband and wife. and that. neither can sue alone, as is maintained by some authorities, how can an action be maintained by them after the husband has been barred by the ten years' adverse possession?"

And in the later case the supreme court expressly declares that it adopts the views in the dissenting opinion of Judge HOUGH in the earlier case. It is unnecessary to add more. The law of the state of ·Missouri is thus clearly disclosed in the quotation above made. and, being the law of the state conrt, is the law of this. The motion to strike out that part of the reply will be sustained. I deem it unnecessary to consider the other questions presented by counsel in their motions and demurrer, for thli.J is 1atal to plaintiffs' action. .

UNITED STATES

'11.

STARNES.

(District OOU'I't. D. South Oarolina. February 7. 1889.)
1.

INTERnAL REVENUE LAWS-OFFENSES-RETAIL LIQUOR DEALER-MEDICINAL PREPARATIONS.

One who sells a medicinal preparation, knowing that it contains an eating quality, to be used as a beverage, or with the knowledge that it was purchased to be used as a. beverage, is a retail liquor dealer, within the mean· mg of the United States statutes providing for the punishment of persons carryirig oti the business of retail liquor dealers without payment of the special tax;

11.

SAME.

8. SAME.

Where the dealer, after having sold such preparation toa custoI!ler, who, in his presence, or with his knowledge. used it as a beverage, continues to sell it to the customer, the jury may find him guilty of such offense.
.. .

So, als6, if the preparation is but a disguised form of spirituous liquors, intended for use as a

Indictment for Carrying on the Business of a Retail Liquor Dealer Without Having Paid the Special Tax. . L. F. Yowmans, U. S. Dist. Atty. W. J. Oherry and 1. B. Bell, for defendant. SIMONTON, J., (charging jury.) The defendant, a merchant of Lancaster. is indicted for carrying on the business of a retail liquor bottle a dealer witpout having paid the special tax. .He sold by compound known as "Burton's Bitters," not having paid the spe.upst cial tax as a retail liquor. dealer. The jury., from

FEDERA..LREPOR'JlER,

vol.. 37.

answer these' questions : BUi'ton's Bitters, are they a genuine medicine, for medicinalptirposes, or were they, asoharged by the gQvel'lirnent, a disguised form Of spirituqus liquors,intended for use as ,a beverage? If, Burton's Bitters were in:tended as a medicine, did they contain enough alcoholic to give an intoxicating quality? Did the defendantselHhem as a medicine, for medicinal purposes, and rione other? ' , Did he 'sell them as a beverage, or did he know that they were' purchased from him t6 be used as a beverage? Were they used by purchasers in his preseilce,:and with his knowledge, as a beverage i and did he continue to sell them to such purchasers after that knowledge was acquired? If the bitters are simply an intoxicating drink in disguise, and defendant knew this, you can find him guilty. If the bitters conti1in an intoxicating quality anli, are reaUya medicine, or are intended for medicinal l:\nd defendilnt, knowing that they could intoxicate, sold them to be used as' a beverage", or with the edge that they'were purchased used as a beverage, you may find h'imguilty. If he sold the bitters to any of his customers, and they, in his presence, or with his knowledge, used the bitters as a beverage. and with the knowledge thus acquired he continued to sell to them, you may find him guilty.

(DiBtrict Oo'u//"t; B.D. AlaT}(tma. February 18, 1889.)
Defendant entered Ii. claim, and on aplllication to commute hla , entry a casb entry be made affidavit, July 80, 1887, tbat be bad actually moved on tbe, said land in Decedlber,1886; tbat bis residence bad been on tbe'land up to taking saidoli.tb; that bisresidence tbereon had been con· tinuous; and that he bad not resided or boarded elsewhere than on said land sl,ncecommencing bis residence ,thereon. Defend!tnt's was made be' f.c;>re a. judge of probate. 'fJeld" that 'the statements sworn to were not such ali required or authorize(}'by law to be made 'by an applicant for a pre· emptIOn, homestead, or a homestead commutation entry, under Rev. St. U. . 2262, 2289-2291. They were irrelevant and immaterial, and perj ury could 2[ot be predicated on them.' N , , 8. SAME-COll(pETENCY OF TRIBUNAL-PROBATE JUDGE. Under Rev. St. U. S. 58lJ2, denouncing the crime of perjury, and declaring .', that the oath must be taken be£ore Borne "competellt tribunal, oflcer, or per· son, .. as the judge of probate had nO authority to administer such, oath, an indictment for perjury will not lie. ' ,
1.,

FOR

(,1()QuTATION

OF HO)!ESTEAD ,ENTRY.

Demurrer to Indictment forPerjury. Defimdant entered a quarter section ofland in Escambiacounty, Ala., tinder Rev. St. U. S. § arid afterwards, under sectlon 2301, comfun'ted his homestead entrY'into atlash entry. The willfully false declarations or statements which the'defEmdnnt is cbargedtohave made are con-

, :1'

"

, JReported byP. J. Hamilton, Esq., of the Mobile bar.