presence of the maker, and the like. Now, if the present rule in a given jurisdiction requires but one attestor to be called, and if he is unable to testify to all these elements, the present rule is satisfied; but the elements of the execution are not yet made out, so that the proponent may have to call others to prove the remaining facts of the case. This, however, is not because of the present rule, but because otherwise the requirements of his particular case, under the substantive law, are not fulfilled. It is to this that the common expression refers, in the rulings above cited, that 'one witness suffices, provided he can prove the requisites of a valid execution.' We think, from this masterly discussion by Professor Wigmore and from all the other authorities, which we have carefully examined, that under Code of 1871, section 1101, the devise to the subscribing witness, Newton Kolb, is void. It comes simply to this, under the law: That until statute of 25 George II, chapter 6, was passed in England-reincorporated substantially in the laws of the different American states-a will of land which did not have the proper number of competent attesting witnesses was absolutely void, and that since that statute and other like statutes-we have Code of 1871, section 1101, as applied to this case-not the whole will, but the devise or legacy to the interested subscribing witness, is void; in other words, the entire will, in the one case, fails because it does not have the solemn formality the substantive law requires it to have as essential to its validity of being attested in writing by the required number of competent witnesses; and now, not the whole will fails, but the devise or legacy to the interested subscribing witness fails, and that annulment of such devise or legacy to the subscribing witness leaves him competent, and so the required number of competent witnesses is furnished, which saves the will except as to the annulled legacy or devise. We ought to add that on the oral reargument of this cause the 18 attention of the court and of counsel was directed to the single proposition as to whether the will had been, by all the testimony in the case, legally established, and that consideration of the question raised by the suggestion of error, but which was pressed by counsel for the suggestion of error in his original brief, was not made prominent. It follows from these views, that the suggestion of error must be, and it is hereby, sustained, and the original judgment will be corrected accordingly. Suggestion of error sustained. The Competency of Subscribing Witnesses to a Will is the subject of a note to Stevens v. Leonard, 77 Am. St. Rep. 459. If an attesting witness is interested as a devisee or legatee under the will, or is to derive a pecuniary benefit or advantage from any part of it, or if he is interested, at the time of attesting, in a religious or charitable institution to be benefited thereby, he is not disinterested within the meaning of the statute: Kessler's Estate, 221 Pa. 314, 128 Am. St. Rep. 741. The time of qualification of a witness to a will, by reason of noninterest, must be referred to the time of the execution of the instrument: Historical Society v. Kelker, 226 Pa. 16, 134 Am. St. Rep. 1010. As to the Effect of a Devise or Bequest to a Subscribing Witness, see Fisher v. Spence, 150 Ill. 253, 41 Am. St. Rep. 360; In re Holt's Will, 56 Minn. 33, 45 Am. St. Rep. 434. The Attestation and Witnessing of Wills is the subject of a note to Lane v. Lane, 114 Am. St. Rep. 209. ROBERTS v. THOMAS. [94 Miss. 219, 48 South. 408.] HOMESTEAD.-A Widower Who Comes to This State may acquire a homestead here, although he temporarily leaves his children in the state from which he removes, to there attend school. (p. 573.) May & Sanders, for the appellant. Denny & Denny, for the appellee. 221 FLETCHER, J. George Thomas, the appellee, a widower, moved to Mississippi from Georgia some three years ago, and bought a house and lot upon which he actually resided. He had two boys who remained behind in Georgia, boarding with their grandfather and attending school, their board and tuition being paid by the 222 father. The father testifies that he was holding the place where he lived as a home for himself and boys, who would rejoin him as soon as they finished their school course. The sole question is whether Thomas had a right to hold this house and lot as a homestead against a purchaser at an execution sale. It will readily be conceded under all the authorities that appellee was the head of a family, and that he could send his children away from home to attend school without forfeiting his right to the homestead, provided he continued to reside in the home. It is difficult to see how the case can be different merely because the boys, who are temporarily absent at school, have never actually and physically resided in the home, provided there is always present their intention to do so as soon as their school-days are over. The authorities cited for appellant are not in point. Mere occupancy certainly is not sufficient; but, when that occupancy is coupled with residence, citizenship, and the status of being the head of the family, the right is perfect, and cannot be defeated because the children have chosen to remain at school when the father removed, rather than go through the useless ceremony of coming to Mississippi for a while, and then returning to their school duties. The learned chancellor held correctly, and the decree is affirmed. A Homestead Claimant, Having a Wife and Three Minor Children, is entitled to a homestead exemption, although they are not living with him at the time of the seizure and some of them may have been earning their own support: Garner v. Freeman, 118 La. 184, 118 Am. St. Rep. 361. As to Who is the Head of a Family Within the Meaning of the homestead laws, see the notes to Wike v. Garner, 70 Am. St. Rep. 107; Wade v. Jones, 61 Am. Dec. 586. BACOT v. STATE. [94 Miss. 225, 48 South. 228.] LIQUOR-Unlawful Sale-Good Faith as Defense.-It is no defense to a prosecution for the sale of intoxicating liquor as a beverage that the seller in good faith believes the liquor nonintoxicating. (pp. 574, 575.) Albert Bacot was tried for the unlawful sale of intoxicating liquors, and convicted. The evidence for the prosecution showed that he sold a beverage called "phosphate," which intoxicated those who drank it. He did not deny selling the beverage, but testified that he did not know it was intoxicating. As evidence of his good faith he sought to show that the manufacturers of the phosphate guaranteed it nonintoxicating. The court declined to admit such evidence. While a witness in his own behalf, he was asked, "Would you intentionally sell any liquors that were intoxicating?" The state objected to this question, and the defendant was not allowed to answer. This action on the part of the trial court, and its refusal to give instructions relative to the good faith of the defendant in selling what he believed to be nonintoxicating liquors, were assigned as error. Clem V. Ratcliff, for the appellant. George Butler, assistant attorney general, for the appellee. 227 FLETCHER, J. This case is totally unlike the cases of King v. State, 58 Miss. 737, 38 Am. Rep. 344, Bertrand v. State, 73 Miss. 51, 18 South. 545, and Goode v. State, 87 Miss. 495, 40 South. 12, cases dealing with the sale of compounds to be used exclusively for medical purposes. In that class of cases the substance was not offered for sale as a beverage, but as a medicine, and the good faith of the merchant was properly in issue. But in this case the so-called "phosphate" was kept for sale and sold as a beverage, and in such cases the seller must take the risk and bear the consequences if the fluid dispensed is in fact intoxicating. Aside from the well-known exception in the case of pharmaceutical preparations, the law punishes the fact of selling intoxicants, regardless of the intent of the seller. He must see to it that the beverages he dispenses are nonalcoholic to the extent that intoxication in any degree will not be produced by even excessive consumption of the beverage. The circuit court was correct in excluding evidence and refusing instructions relative to the good faith of the appellant. We take occasion to say that the sale of intoxicating liquors, although disguised under unusual names and unfamiliar labels, will not be encouraged by this court. Affirmed. Ignorance That Liquors are Intoxicating constitutes no defense or excuse for their unlawful sale. The seller must know at his peril whether or not they are intoxicating, and his belief that they are not, however honest, and resulting from a guaranty under which he bought them, is no excuse: Haynes v. State, 118 Tenn. 709, 121 Am. St. Rep. 1055. See, however, Reed v. State, 53 Tex. Cr. 4, 126 Am. St. Rep. 765; Coleman v. State, 54 Tex. Cr. 401, 130 Am. St. Rep. 896. SAXONY MILLS v. WAGNER. ATTACHMENT.-One Indebted to a Nonresident cannot place money on deposit in a bank, in defiance of his creditor's wishes, for the purpose of conferring jurisdiction in attachment upon the court where the bank is located. (p. 577.) FOREIGN CORPORATION-Doing Business in State-Jurisdiction.-A foreign corporation is not doing business in a state, so as to be within the jurisdiction of its courts, where it sends traveling salesmen into the state to take orders which are transmitted to the home office and filled by shipments direct to the purchasers. (p. 578.) FOREIGN CORPORATION-Service of Process on Agent.-A traveling salesman for a foreign corporation, who takes orders which are transmitted to the home office and filled by shipments direct to the purchasers, is not an "agent" of the corporation on whom process against it can be served. (p. 578.) FOREIGN CORPORATION-Service of Process on Agent.The "agent" of a foreign corporation, on whom process against it can be served, is not every man intrusted with a commission or employment, but some officer who, generally or in some particular department, has controlling authority. (p. 578.) Kimmons & Kimmons, for the appellant. I. T. Blount, for the appellees. 236 FLETCHER, J. The appellant, a nonresident corporation, was sued in 1905 by the appellees in the court of Justice Mauldin at Water Valley for damages on account of a shipment of flour. The suit was by attachment, and in order that jurisdiction should attach it was necessary, under section 133 of the Annotated Code of 1892, that the defendant company "be found" in the justice's district or have property or debts in such district. It appears that Wagner & Co. were indebted to appellant in the sum of eight hundred and thirty-two dollars and fifty cents, and, for the evident purpose of conferring upon the justice of the peace jurisdiction of the attachment suit, Wagner & Co. deposited this sum of money in the Bank of Water Valley to the credit of the Saxony Mills, and thereafter sued out the attachment, alleging that the Bank of Water Valley was indebted to the Saxony Mills. The bank answered the writ of garnishment, stating that Wagner & Co. had made this deposit, which was still in the possession of the bank, but that the Saxony Mills repudiated the transaction, disclaimed any ownership of the fund, and declined to recognize the deposit. In addition to this procedure, the summons in attachment was served upon one Reynolds, a resident citizen of Water Valley, who was at the time a traveling salesman in the employ of the Saxony Mills. Reynolds seems to have accepted service and acknowledged that he was the agent of the appellant, and the officer so stated in his return. The appellant entered no appearance in the case, and judgment was taken in favor of Wagner & Co. as by default for the sum of one hundred and fifty dollars, and the money in the bank was subjected to the payment of the judgment. It appears, however, that this fund was never so applied, but seems to have been paid to appellant. However that may be, it appears that in September, 1906, the judgment was unsatisfied, and upon suitable garnishment proceedings a debt due appellant by the Newburger Mercantile Company was sought to be subjected to the payment of the judgment. The sole defense interposed by the Saxony Mills is that the judgment rendered by Justice of the Peace Mauldin 287 in 1905 is void, because that court never acquired jurisdiction. The circuit court held that the judgment was not void, and gave judgment against the garnishee in favor of appellees, and the Saxony Mills prosecuted this appeal. It is insisted by appellant that the act of Wagner & Co. in depositing the money in the bank to the credit of the Saxony Mills was unsanctioned by the appellant, and that jurisdiction could not thereby be conferred upon the court. We agree with this contention and have no difficulty in concluding that one indebted to a nonresident cannot place money on deposit in a bank, in defiance of his creditor's wishes, for the purpose of conferring jurisdiction in attachment upon the court where the bank is located. This judg ment must be upheld, if at all, upon the theory that the non |