delivered the opinion of the court.

This is an agreed case to test the liability of plaintiff in error, a manufacturer of whisky out of the products of the State, to the payment of a wholesale liquor dealer’s license under the act of 1881.

It is admitted that John Webb, a citizen of Campbell county, Tennessee, is a manufacturer of corn whisky out of the products of the State, and sells the same “by the quart and upwards,” in said county, not to be drank upon the premises where sold.

S. C. Baird is clerk of the county court of said county, and on 23d day of November, 1882, issued his distress warrant against the said Webb for the sum of $112.50 and costs, being amount of State and county tax; said sum was paid under compulsion. And *668this suit is brought to recover back the sum thus paid.

It is now insisted that Webb is not subject to said tax, and he is exempt under the act of 1870, Code, sec. 69le, and is therefore entitled to recover' back the said sum of $112.50, and costs of this proceeding; on the other ' hand it is insisted that the collection was proper under the act of 1881.

Upon the foregoing facts his Honor, the circuit judge, held that Webb was liable for wholesale privilege tax, and was not entitled io recover back the sum paid by him, and adjudged costs against him.

We have held in another case against Webb, opinion this day pi’onounced, that all wholesale and retail dealers in liquors are liable to the tax under the act of 1881, and that although the liquor may be manufactured out of the products of the farms, gardens, etc., of the State, they are not thereby exempt from tax under sec. 961e of the Code, as the later revenue law of 1881 includes all dealers, and contains no exemptions.

The agreement shows “sales by the quart and upwards,” not to be drunk upon the premises when sold. Does this constitute a wholesale dealer in liquor? We think not. In the case of State v. Lowenhaught, 11 Lea, 13, the defendant was presented for “selling liquor by the quart, and in larger quantities,” not to be drank upon the premises, upon the idea that he was required to take out license as a wholesale dealer in liquor. The circuit judge quashed the presentment, and upon appeal, this court affirmed the judgment, *669declaring such a sale as alleged “by the quart and. in larger quantities” did not charge a sale by wholesale. So in this case we hold the agreed facts stating a sale “ by the quart and upwards,” does not-sustain the judgment of his Honor, the circuit judge,, that plaintiff, Webb, was liable for the wholesale privilege tax as a liquor dealer.

The judgment must be reversed, and judgment-rendered here for the plaintiff.