defendant might be wrongfully seized, and taken from the possession of the owner; yet if, upon dissolution of the attachment, the plaintiff could still proceed to judgment in the suit, he could thus satisfy the condition of the bond, and leave the defendant remediless thereon. Hahn v. Seifert, 64 Mich. 647. The only way to protect the rights of the defendant, and afford a remedy on the bond for a causeless attachment, is to hold that if the lien is lost, either through a defective or false affidavit, the jurisdiction to proceed further in the suit is gone for want of jurisdiction over the process, and thus prevent the use of this extraordinary remedy as an ordinary one to bring a defendant into court and obtain a personal judgment. We therefore overrule the decision announced in Hills v. Moore. It remains to consider whether the affidavit in the presen case is fatally defective. The statute requires the affidavit to be made by the plaintiff, or by some one in his behalf. In this case the affidavit was not made by the plaintiff, and it does not appear from the affidavit that it was made by any person in his behalf. We consider it essential that it should appear upon the face of the affidavit that it is made either by the plaintiff or by some person in his behalf. Burnside v. Davis, post. 74. We do not think the affidavit was sufficient, for the reason stated, to confer jurisdiction upon the justice, and the judgment of the circuit court is affirmed. The other Justices concurred. 1:g རྱེ 35 THE PEOPLE V. PETER BREIDENSTEIN. Liquor traffic-Complaint for engaging in business without payment of tax-Requisites to conviction. 1. Under How. Stat. § 2270, a penalty is incurred if liquor is sold or given away without first executing and delivering to the county treasurer the bond required by the statute, and, in order to a conviction, such sale or gift must be shown. 2. How. Stat. §§ 1281, 1286, taxes the business of liquor selling, and imposes a penalty for carrying on such business without the payment of the required tax, and posting of the required notice in the place where such business is carried on; and in a prosecution for a violation of these provisions, proof of specific sales is not required. Exceptions before judgment from Kent. (Montgomery, J.) Argued January 27, 1887. Decided February 10, 1887. Respondent was convicted of doing business as a liquor dealer without payment of special tax, etc. Conviction affirmed and judgment ordered. The facts are stated in the opinion. Emil A. Dapper, for respondent. Moses Taggart, Attorney General, for the People. SHERWOOD, J. The respondent was arrested, tried, and convicted of doing business as a liquor seller without first having paid the tax required by law for that purpose, and without having the receipt for such payment and notice posted up in the place where the liquors were kept for sale. The proceedings and conviction were had before Judge Holmes in the police court in the city of Grand Rapids. Respondent appealed to the circuit court, where the cause was tried before Judge Montgomery, by jury, and the respondent was 65 MICH.-5. 65 74 again convicted, and he now asks a review of the case in this Court. The complaint upon which the warrant issued was full and specific in its statement of the offense charged, the substance of which was recited in the warrant, which reads as follows: "STATE OF MICHIGAN, City of Grand Rapids, County of Kent. "Whereas, John Perry hath this day made complaint on oath and in writing to me, John T. Holmes, judge of the police court of Grand Rapids, in the said county, that heretofore, to wit, on the twenty-ninth day of July, A. D. 1886, at the city of Grand Rapids, in the aforesaid county, one Peter Breidenstein, he not being then and there a druggist, who sells liquors for chemical, scientific, medicinal, mechanical, or sacramental purposes only, was then and there engaged in the business of selling and offering for sale malt, brewed, and fermented liquors without first having paid to the county treasurer of said county of Kent the annual tax required by law to be paid, to wit, the sum of two hundred dollars, and without having the receipt and notice for such tax posted up in the place where said liquors were kept for sale, against the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan; "And whereas, on examination on oath and in writing of the said complainant by me, the said judge, it appears to me, the said judge, that said offense has been committed, and there is just cause to believe the said accused party to have been guilty thereof: "Therefore, in the name of the people of the State of Michigan, you, and each of you, are hereby commanded forthwith to take the said accused party, and bring him before the said police court, at the police court room of the police court of said city, to be dealt with according to law. "Witness, the honorable John T. Holmes, judge of the police court of Grand Rapids, and the seal of said court, at the city of Grand Rapids, this thirtieth day of July, in the year of our Lord 1886. "JOHN T. HOLMES, [Seal.] "Judge of the Police Court of Grand Rapids." The return made to the circuit court does not show any motion made by respondent or his attorney, on being arraigned in the police court, to quash the proceedings, but shows that the respondent pleaded to the charge contained in the warrant, "Not guilty." But in an affidavit made, and returned with the record, it appears that, upon being arraigned before the court upon the warrant, and asked to plead, the attorney for respondent moved to quash the proceedings on the ground "that the complaint did not allege any specific sale to any person or persons, and was therefore void," and that the police court overruled the motion. When the cause was called for trial in the circuit court, respondent's counsel renewed said motion upon the same grounds, and with the same result; and this ruling constitutes the only error assigned in the record. It is claimed that the offense created by the statute "does not consist in engaging in the business, but the act of selling, furnishing, or giving; and it is necessary to allege some specific act of selling, etc., to some person;" and reliance is placed upon People v. Minnock, 52 Mich. 628, and People v. Heffron, 53 Id. 530, to support the position. The prosecution in the cases cited was under another and different statute. How. Stat. § 2270. Under that statute the penalty is incurred if liquor is sold or given away without first giving the bond to the county treasurer required by statute. The complaint in this case is based upon How. Stat. §§ 1281, 1286. It is the business which the party carries on under these sections that is taxed, and the penalty incurred under these sections is for carrying on the business of selling, or offering for sale, malt, brewed, and fermented liquors without having first paid the annual tax therefor, and posted the notice in the place of business as required by law. Under the first statute, before conviction can be had, a sale or giving away of intoxicating liquors must be shown; but under the sections applicable to the present case, no such specific sale or giving away is necessary to constitute the offense. People v. Telford, 56 Mich. 541. We think the ruling of the circuit judge was correct in the premises, and he is advised to proceed to judgment in the case. The other Justices concurred. 65 68 124 634 65 68 s31NW 624 132 9544 THE PEOPLE V. JOHN GIRDLER AND CARRIE GILL. Criminal law-Province of jury-Failure to object to testimony- 1. It is the province of the jury to weigh and pass upon the truth or falsity of evidence, and neither the trial nor appellate court can interfere with their exercise of this right. 2. In a criminal prosecution for adultery, the evidence showed that the parties were married by a justice of the peace outside of his own county, and that they afterwards lived and cohabited together as man and wife for fourteen years, and that two children were living as the fruit of such marriage. Held, sufficient to constitute the parties husband and wife as completely as if the ceremony had been performed by a justice of the peace of the proper county. Hutchins v. Kimmell, 31 Mich. 130. 8. Where, on the trial of a respondent for adultery, testimony was given showing alleged undue familiarities between the parties, to the admission of which testimony no objection was made, nor motion to strike out, and the court was not requested to instruct the jury regarding such evidence, and no exception was taken to the charge as given,— Held, that the respondent cannot raise such objections for the first time in the appellate court. 4. When adultery is charged, the previous conduct and familiarity of the parties is a material subject of inquiry, and pertinent to the issue, if not too remote. Exceptions before judgment from Kent. (Montgomery, J.) Argued January 27, 1887. Decided February 10, 1887. |
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