(Miss. - 110 So. 218.) a university education would not be held as advancements, but we see no reason why a gift of money from a father to his child, to enable him to take a university education, whether in law, medicine, theology, or in the arts and sciences, should not constitute an advancement, if distinctly intended so to be at the time of the gift." (Italics supplied.) Infants account for necessaries. In reference to the holding of the chancellor that the accounts should be charged against each one of the children as debts, we think his ruling is error in so far as it dealt with things furnished the child during the minority of the child. In order to be a debt it must be a contract, and a child under twenty-one years of age is incapable of contracting, except for necessaries, and it is the duty of a father to furnish the necessaries for his child, and he cannot charge the child up with necessaries which it is his duty to furnish. It was also error for the chancellor to hold that these accounts should be charged against the several children against whom they were charged, where they were more than 3 years old at the date of the death of M. A. Greene. All open accounts more than 3 years old Limitation of actionsexecutors and administrators -open accounts. at said time were barred by § 2479, Hemingway's Code (Code 1906, § 3115), which reads as follows: "The completion of the period of limitation herein prescribed to bar any action, shall defeat and extinguish the right as well as the remedy; but the former legal obligation shall be a sufficient consideration to uphold a new promise based thereon." At common law, and under the statutes of most states, the statute of limitation does not extinguish the debt, but merely bars the remedy by which the debt may be collected or enforced. When such is the case, the debt continues to exist, and may be charged against the child in the division of an estate; but, where the debt itself is extinguished by the statute of limitation, as it is in our state, the account ceases to be a debt. It is completely extinguished by the statute of limitation, and can only serve as a legal consideration for a new promise based thereon. Proctor v. Hart, 72 Miss. 288, 16 So. 595; Trowbridge v. Schmidt, 82 Miss. 475, 34 So. 84; Cox v. American Freehold & Land Mortg. Co. 88 Miss. 88, 40 So. 739; Central Trust Co. v. Meridian Light & R. Co. 106 Miss. 431, 51 L.R.A. (N.S.) 151, 63 So. 575, 64 So. 216; Rogers v. Rosenstock, 117 Miss. 144, 77 So. 958. account. In reference to the accounts which are not barred by the statute of limitation, we are of the opinion that the testimony that the books were made up in the reg- Evidenceular course of busi- books of ness and were correctly kept renders them admissible in evidence. They may be sufficient, in the absence of counter proof, to sustain the finding that the parties charged therewith owed the said amounts. We think that the chancellor was in error in holding that the complainants were not put to proof by the denial Pleadingof the answer being verification sworn to by an attorney. Section 731, Hemingway's Code (§ 1011, Code of 1906), provides: "In all cases where the oath or affirmation of the party is required, such oath or affirmation may be made by his agent or attorney, and shall be as effectual for all purposes as if made by the party.' by attorney. This section has the effect of making a denial sworn to by an attorney impose the burden to prove the matter upon the complainant. We do not think the affidavit to the account made by the administratrix after the pleadings were made up has any efficacy in putting the defendant to a denial of the several items under the oath. The bill was not based upon an itemized open account duly sworn to as provided by § 1638, Hemingway's Code (§ 1978, Code of 1906). This section was intended to be used in connection with the pleadings in making up the issues. After the pleadings are properly at issue, the proof must be produced in the regular way by the production and examination of the witnesses. This section was not intended for the purpose for which it is attempted to be used in the present suit. It was not intended to enable a person incompetent to testify to accomplish the same result by -ex parte account. swearing to an open account itemized ex parte. Where the account is a part of the pleadings, and is verified in the manner provided by the statute, the statute compels the other party to particularize in his denial of what is and what is not correct; but it is not intended that either party by an affidavit subsequently filed as a part of the evidence can get the benefit of it. In reference to the land deeded by the intestate to the three sons above mentioned, we think the regular chancellor should have heard the evidence with reference to the purchase of this property with the money of the first wife of the intestate, who was the mother of the three sons involved. If in fact he purchased these lands with their mother's money, Advancements -evidencedeed to children. and intended when he gave the lands to recognize his obligation to her children, the lands should not be held to be advancements. If they were not so purchased, and if they were intended as advancements, as the law presumed they were in the absence of proof to the contrary, the value should have been fixed as of the date when the gift was made and possession taken. In 1 R. C. L. 678, under the head ing "Time of Valuation," it is said: "It is a rule of almost universal application that an advancement is to be valued as of the date when the estate or interest passed to the donee, or as the rule is often expressed, as of the date when the donee took possession and entered into the enjoyment of the gift. It matters not whether, at the time the donee thus actually took possession and entered into the enjoyment of the advanced property, he held the legal title thereto, provided he thereafter acquired such title. Thus the value of land advanced is to be determined as of the date of taking possession, although the advancement was made in parol and the deed to the land was not delivered quired." until after possession was ac In Jackson v. Jackson, 28 Miss. said: 674, 64 Am. Dec. 114, this court "Its value must be estimated as at the time when the gift was made." -valuation of. The chancellor was, therefore, in error in having the land valued as of the dates of the deeds rather than of the dates possession was taken. There might, in fact, never be a deed, but title might ripen by adverse possession. For the purpose of advancement, it is to be treated as though the deed was made when possession was given with the declaration or agreement of gift. We think the decree of the Chancellor was proper in reference to the homestead, and that the commissionaccording to the manner it was ers should set aside the homestead treated by the intestate in his lifetime. We think it proper to reverse the case generally, and remand it opinion herein rendered. for the purpose of conforming to the ANNOTATION. Items in form of account as advancements. "A transfer of property from one person during his lifetime to another may be a simple gift, a transfer found ed on consideration, a loan, or an advancement. In order to ascertain the nature of the transfer by a parent to his child, it becomes necessary to ascertain the intention of the parent in making it. . . . For it is well settled by the reported cases that the donor's intention is the controlling principle in the application of the doctrine of advancements, and that whatever the donor intended as an advancement should be so considered without regard to the mode of making it or of securing its actual enjoyment." 1 R. C. L. 656 (Advancements, § 5). An extended search reveals but two cases other than the reported case (GREENE V. GREENE, ante, 565). which involve the precise subject of the present annotation. In the reported case (GREENE V. GREENE), where a plea of limitations made it important to determine whether items charged against distributees in the intestate's books of account were to be regarded as debts or advancements (the effect of the local Statute of Limitations being to extinguish the debt), it is held that where the book accounts are not dealt with by the intestate as advancements, and payments on the debts were received and credited, they will be treated as other book accounts rather than as advancements. The court is careful to point out, however, that if the intention existed to make the items advancements, and this fact was clearly proven, it would be controlling. In that case, it will be observed that the question was whether the items in form of book accounts constituted debts or advancements, while in the other cases the question was whether they constituted simple gifts or ad vancements. In Page v. Tucker (1850) 8 N. J. Eq. 348, where it was claimed that certain items in the form of account should be regarded as gifts, since they were made to a distributee to assist him when in need, it was held that the items were chargeable as advancements, where there was evidence of declarations by the intestate that they were so regarded and intended. In Hill v. Hill (1906) 122 Ky. 681, 92 S. W. 924, it was held that, under the circumstances, the intestate must have intended the particular items charged on account as advancements, rather than as gifts. “Dr. Hill, so far as the evidence shows, did not keep any account against his children for money expended in giving them an ordinary education, or one suited to their station and opportunities in life. The account only begins when money is expended for the purpose of giving his children a professional education, and the potent fact that the father, when he commenced expending money in giving them a professional education, opened an account and charged the children with the sums so furnished, is persuasive, if not conclusive, of the proposition that this money was furnished with a view to a portion or settlement in life." Evidentiary matters. Unless the declarations of the intestate during his lifetime, which are relied upon to prove his intention with respect to the items alleged to be advancements, are directly connected with the particular advancement so as to make such declarations part of the res gestæ, they are not admissible in evidence. Hill v. Hill (1906) 122 Ky. 681, 92 S. W. 924; GREENE V. GREENE (reported herewith) ante, 565 (semble). P. U. G. (272 U. S. 581, 71 L. ed. (Adv. 240), 47 Sup. Ct. Rep. 210.) Intoxicating liquors, § 10 power to limit for medicinal purposes. 1. The provision of the 18th Amendment to the Federal Constitution endowing Congress with power to enforce prohibition by appropriate legislation empowers it to limit the amount of liquor which may be prescribed for medicinal purposes. [See annotation on this question beginning on page 588.] Intoxicating liquors, § 10 ing prescription to pint validity. 2. Restricting prescriptions by physicians of intoxicating liquor to not to exceed a pint for use by the same person within any period of ten days cannot, in view of the diverging opinions of physicians as to the medicinal value of such liquor, be regarded as arbitrary or without a reasonable basis, and is an admissible measure for enforcing the prohibition ordained by the 18th Amendment to the Federal Constitution. [See 4 R. C. L. Supp. 985, 986; 6 R. C. L. Supp. 909. See also annotation in 10 A.L.R. 1588.] Constitutional law, § 751 practise medicine right to police power. 3. There is no right to practise (Mr. Justice Sutherland, Mr. Justice McReynolds, Mr. Justice Butler, and Mr. Justice Stone dissent.) APPEAL by complainant from a decree of the United States Circuit Court of Appeals for the Second Circuit reversing a decree of the District Court for the Southern District of New York enjoining the execution of the provision of the National Prohibition Act limiting the amounts of liquor which may be prescribed for medicinal purposes. Affirmed. See same case below, 4 F. (2d) 915. The facts are stated in the opinion of the court. The 18th Amendment, in prohibiting beverage purpose, does not prohibit, or delegate the power to prohibit, medicinal use. McGill v. Mellon (D. C.) 5 F. (2d) 262; Selzman v. United States, 268 U. S. 466, 69 L. ed. 1055, 45 Sup. Ct. Rep. 574; Com. v. Mandeville, 142 Mass. 469, 8 N. E. 327; Gue v. Eugene, 53 Or. 282, 100 Pac. 254; State v. Roach, 75 Me. 123; State v. Costa, 78 Vt. 198, 62 Atl. 38; Busch v. Webb (C. C.) 122 Fed. 655, appeal dismissed in 194 U. S. 640, 48 L. ed. 1162, 24 Sup. Ct. Rep. 857; Bowman v. State, 38 Tex. Crim. Rep. 14, 40 S. W. 796, 41 S. W. 635; Thomasson v. State, 15 Ind. 449; State v. Larrimore, 19 Mo. 391; Sarrls v. Com. 83 Ky. 327; Nixon v. State, 76 Ind. 524; United States v. Harris, 177 U. S. 305, 44 L. ed. 780, 20 Sup. Ct. Rep. 609; National Prohibition Cases (Rhode Island v. Palmer) 253 U. S. 350, 64 L. ed. 946, 40 Sup. Ct. Rep. 486, 588. Prohibition of medicinal use is inappropriate to the reasonable enforcement of prohibition of beverage purpose. Hawker v. New York, 170 U. S. 189, 42 L. ed. 1002, 18 Sup. Ct. Rep. 573; Dent v. West Virginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231; Tiedeman, Control of Persons & Prop. $ 85, p. 239; Freund, Pol. Power, § 650; James Everard's Breweries V Day, 265 U. S. 545, 68 L. ed. 1174, 44 Sup. Ct. Rep. 628; United States v. Doremus, 249 U. S. 86, 63 L. ed. 493, 39 Sup. Ct. Rep. 214; Lochner v. New York, 198 U. S. 45, 49 L. ed. 937, 25 Sup. Ct. Rep. 539, 3 Ann. Cas. 1133; Freund, Pol. Power, p. 210, § 223; Linder v. United States, 268 U. S. 5, 69 L. ed. 819, 39 A.L.R. 229, 45 Sup. Ct. Rep. 446; United States v. Daugherty, 269 U. S. 360, 70 L. ed. 309, 46 Sup. Ct. (272 U. S. 581, 71 L. ed. (Adv. 240), 47 Sup. Ct. Rep. 210.) Rep. 156; Adams v. Tanner, 244 U. S. 590, 61 L. ed. 1336, L.R.A.1917F, 1163, 37 Sup. Ct. Rep. 662, Ann. Cas. 1917D, 973; Children's Hospital v. Adkins, 52 App. D. C. 109, 284 Fed. 613, affirmed in 261 U. S. 525, 67 L. ed. 785, 24 A.L.R. 1238, 43 Sup. Ct. Rep. 394. Control of medical practice in the states is beyond the power of the Federal government. Linder v. United States, 268 U. S. 5, 69 L. ed. 819, 39 A.L.R. 229, 45 Sup. Ct. Rep. 446; Hamilton v. Kentucky Distilleries & Warehouse Co. 251 U. S. 146, 64 L. ed. 194, 40 Sup. Ct. Rep. 106; Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357; Hammer v. Dagenhart, 247 U. S. 251, 62 L. ed. 1101, 3 A.L.R. 649, 38 Sup. Ct. Rep. 527, Ann. Cas. 1918E, 724; Child Labor Tax Case (Bailey v. Drexel Furniture Co.) 259 U. S. 20, 66 L. ed. 817, 21 A.L.R. 1432, 42 Sup. Ct. Rep. 449; Jacobson v. Massachusetts, 197 U. S. 11, 49 L. ed. 643, 25 Sup. Ct. Rep. 358, 3 Ann. Cas. 765. Mrs. Mabel Walker Willebrandt, Assistant Attorney General, and Messrs. William D. Mitchell, Solicitor General, and Mahlon D. Kiefer, for appellees: There is no right to practise medicine which is not subordinate to the police power. Gray v. Connecticut, 159 U. S. 74, 40 L. ed. 80, 15 Sup. Ct. Rep. 985; Dent v. West Virginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231; Watson v. Maryland, 218 U. S. 173, 54 L. ed. 987, 30 Sup. Ct. Rep. 644; Reetz v. Michigan, 188 U. S. 505, 47 L. ed. 563, 23 Sup. Ct. Rep. 390; O'Neil v. State, 115 Tenn. 427, 3 L.R.A. (N.S.) 762, 90 S. W. 627; State v. Davis, 194 Mo. 485, 4 L.R.A. (N.S.) 1023, 92 S. W. 484, 5 Ann. Cas. 1000; State ex rel. Grant v. Rosenkrans, 30 R. I. 374, 75 Atl. 491, 19 Ann. Cas. 824; State v. Edmunds, 127 Iowa, 333, 101 N. W. 431. Legislative acts are presumed constitutional. Interstate Consol. Street R. Co. v. Massachusetts, 207 U. S. 79, 52 L. ed. 111, 28 Sup. Ct. Rep. 26, 12 Ann. Cas. 555; Hamilton v. Kentucky Distilleries & Warehouse Co. 251 U. S. 146, 64 L. ed. 194, 40 Sup. Ct. Rep. 106. Every possible presumption is in favor of the validity of an act of Congress until overcome beyond rational doubt. James Everard's Breweries v. Day, 265 U. S. 545, 68 L. ed. 1174, 44 Sup. 49 A.L.R.-37. Ct. Rep. 628; Price v. Russell (D. C.) 296 Fed. 263. Messrs. Wayne B. Wheeler and Edward B. Dunford, amici curiæ: Congress has power under the 18th Amendment to prohibit the prescribing of certain kinds of intoxicating liquors and to regulate the prescribing of other kinds. James Everard's Breweries v. Day, 265 U. S. 545, 68 L. ed. 1174, 44 Sup. Ct. Rep. 628; Clark Distilling Co. v. Western Maryland R. Co. 242 U. S. 311, 61 L. ed. 326, L.R.A.1917B, 1218, 37 Sup. Ct. Rep. 180, Ann. Cas. 1917B, 845. The power of Congress to enforce the 18th Amendment is the same as the police power of states to prohibit beverage intoxicants. National Prohibition Cases (Rhode Island v. Palmer) 253 U. S. 350, 64 L. ed. 946, 40 Sup. Ct. Rep. 486, 588; Jacob Ruppert v. Caffey, 251 U. S. 264, 64 L. ed. 260, 40 Sup. Ct. Rep. 141. The states have authority to prohibit certain kinds of liquors for medicinal purposes and to regulate the medicinal use of other kinds. State v. Durein, 70 Kan. 13, 15 L.R.A. (N.S.) 908, 80 Pac. 987, affirmed in 208 U. S. 613, 52 L. ed. 645, 28 Sup. Ct. Rep. 567; State v. Weiss, 84 Kan. 165, 36 L.R.A. (N.S.) 73, 113 Pac. 388; State v. Miller, 92 Kan. 994, L.R.A. 1917F, 238, 142 Pac. 979, Ann. Cas. 1916B, 365; State v. Macek, 104 Kan. 742, 180 Pac. 985; State v. Kurent, 105 Kan. 13, 181 Pac. 603; State v. Kane, 15 R. I. 395, 6 Atl. 783; State v. Kennedy, 16 R. I. 409, 17 Atl. 51; Re Crane, 27 Idaho, 671, L.R.A.1918A, 942, 151 Pac. 1006; Crane v. Campbell, 245 U. S. 304, 62 L. ed. 304, 38 Sup. Ct. Rep. 98; Cooper v. State, 19 Ariz. 486, 172 Pac. 276; People v. Urcavitch, 210 Mich. 431, 178 N. W. 225. Congress has the right to regulate the nonbeverage use of liquor as an implied and necessary incident to make effective the prohibition upon the beverage use of intoxicants. Selzman v. United States, 268 U. S. 466, 69 L. ed. 1054, 45 Sup. Ct. Rep. 574. There is no right to practise medicine which is not subordinate to police power. Dent v. West Virginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231; Gray v. Connecticut, 159 U. S. 74, 40 L. ed. 80, 15 Sup. Ct. Rep. 985; Watson v. Maryland, 218 U. S. 173, 54 L. ed. |