INTOXICATING LIQUORS-SEARCH AND SEIZURE-ILLEGAL POSSESSION -STATUTES.
Under authority of People v. Marxhausen, ante, 559, the conviction of defendant, under the "Damon Act," of having illegal possession of intoxicating liquors, should be reversed, said act having been repealed by the "Wiley Act."
Exceptions before judgment from Chippewa; Barton, J., presiding. Submitted January 17, 1919. (Docket No. 127.) Decided April 3, 1919.
John Wilson was convicted of a violation of the liquor law. Reversed, and defendant discharged.
McDonald & Kaltz, for appellant.
Alex. J. Groesbeck, Attorney General, and Thomas J. Green, Prosecuting Attorney, for the people.
BROOKE, J. Defendant was convicted under a complaint and warrant wherein it is charged that said defendant,
"did then and there unlawfully possess within this State, to-wit, the State of Michigan, certain spirituous and intoxicating liquors, to-wit, one gallon of whiskey, said intoxicating liquors not being then and there so possessed for medicinal, chemical, mechanical, scientific or sacramental purposes."
The evidence introduced makes it clear that the defendant was in possession of the liquor in question in his private house and that he had acquired such possession by purchase at a time prior to the first of May, 1918, when both purchase and possession were legal. At the conclusion of the trial a motion was made on behalf of the defendant for a directed verdict upon the ground that the information contains
no allegation or fact constituting a crime under the laws of the State of Michigan and upon the further ground that Act No. 161 of the Pub. Acts of 1917, under which defendant was prosecuted, was repealed by Act No. 338, Pub. Acts 1917. That under the latter act possession by defendant of intoxicating liquors legally acquired prior to May 1, 1918, does not constitute a violation of any existing law. The motion was denied and defendant was convicted.
The question here involved is ruled by our decision in People v. Marxhausen, ante, 559, to which reference is made for a discussion of the applicable law.
The judgment is reversed and the defendant is discharged.
BIRD, C. J., and MOORE, STEERE, FELLOWS, STONE, and KUHN, JJ., concurred. OSTRANDER, J., did not sit.
ACCEPTANCE-See SALES (2).
ACCIDENT-See NEGLIGENCE (3, 8); TRIAL (8, 9).
1. "Actions" and "causes of action," though often used syn-
onymously, do not strictly and technically have the same
meaning. Otto v. Village of Highland Park, 74.
2. As applicable to this case, where defendant village moved
to dismiss, on the ground that it was improperly joined,
chapter 8, § 1, of the judicature act (section 12309, 3
Comp. Laws 1915), deals with "causes of action" which
are generally recognized and often defined as the fact or
combination of facts giving rise to or entitling a party to
sustain an action. Id.
3. There being three defendants, the alleged liability "must
be asserted against all," for all are "material" if properly
made defendants; there being no claim in the declaration
that the causes were united "to promote the convenient
administration of justice." Id.
4. The distinctions between actions at law and suits in
chancery have not been abolished in this State. Id.
ADMISSIONS-See CRIMINAL LAW (6); EVIDENCE (1); MANDA-
MUS (1); MASTER AND SERVANT (2, 5).
ADULTERY-See CRIMINAL LAW (9); LIBEL AND SLANDER (1,
2, 4); WITNESSES (3).
1. Evidence held, insufficient to establish title in defendant
by adverse possession. Burkhard v. O'Brien, 114.
2. On a bill to enjoin defendants from interfering with a
strip of land lying on the boundary between a lot owned by
plaintiff and a lot owned by defendants, where the evi-
dence sustains the finding of the court below that plaintiff
has failed to establish title by adverse possession, the
decree of the court below in favor of defendants will be
affirmed. George v. Dobson, 675.
AGENCY-See PRINCIPAL AND AGENT.
"AGENT"-See CORPORATIONS (13).
AGGRAVATED INJURY-See MASTER AND SERVANT (3).
ALIMONY-See DIVORCE (8, 9).
AMENDMENT-See CARRIERS (2); CONSTITUTIONAL LAW; EMI-
NENT DOMAIN (1); INDICTMENT AND INFORMATION.
AMOUNT DUE JUDGMENT DEBTOR-See CREDITORS' BILL.
ANNULMENT OF MARRIAGE CONTRACT-See MARRIAGE (2,
3).
ANSWER-See MANDAMUS (1); RECEIVERS.
ANTI-TRUST LAWS-See CORPORATIONS (7).
APPEAL-See INSURANCE (9).
1. The question as to whether the husband alone could sur-
render a contract running to himself and wife, not having
been raised in the court below, will not be considered
by this court. Farr v. Childs, 20.
2. Although the point that a lease was forfeited because as-
signed without plaintiffs' consent was first raised in this
court, where its validity was challenged by plaintiffs dur-
ing the trial, it was before the court to construe. Good-
man v. Fangert, 66.
3. Under section 14576, 3 Comp. Laws 1915, error may be as-
signed on the charge without bringing the matter to the
attention of the trial judge; direction of a verdict being a
charge within the meaning of the statute. Id.
4. In a suit to quiet title, defendant's claim in his cross-bill
"that he has a good, valid, and legal claim," praying "that
plaintiff's bill be dismissed, and that an order and decree
be entered confirming defendant's title, and decreeing that
plaintiff has no right, title, or interest therein," is incon-
sistent with his claim on appeal that plaintiff's only rem-
edy is ejectment. Burkhard v. O'Brien, 114.
5. Where plaintiff in testifying made use of a memorandum
to refresh his recollection, upon the theory that he helped
prepare it, and it later appeared that it was not the
paper he helped prepare, withdrawal by the court of all
testimony based upon said paper, held, not to leave the
jury in doubt as to its duty in relation to such testimony.
Clark v. Detroit & Mackinac Ry. Co., 122.
6. Failure of the trial judge to file a fuller statement of his
reasons for overruling the motion for a new trial, held,
not reversible error; review of showing made for new
trial disclosing that right conclusion was reached. Id.
APPEAL AND ERROR-Continued.
7. Where, from the evidence, the court below might well
have found for defendants that the delivery of the deeds
was completed, a decree dismissing the bill without passing
upon the question of delivery will be affirmed, upon ap-
peal. Van Auker v. Toan, 184.
8. An assignment of error that "the court erred in finding
as a question of law that the plaintiff was guilty of con-
tributory negligence," fairly and sufficiently presents the
question. Britton v. Michigan Railway Co., 217.
9. Where objection was made to the admission in evidence
of a land contract, in a suit for specific performance,
because the specific tax provided for by Act No. 91, Pub.
Acts 1911 (1 Comp. Laws 1915, § 4268 et seq.), had not
been paid, but the court did not dispose of the question,
suggesting that it might be brought up again, which was
not done, this court will require the payment of the tax
as a condition of affirmance of the decree. Marussa v.
Temerowski, 271.
10. Where defendant was adjudged guilty of contempt and
fined, which he paid, there is nothing before this court
for determination, on appeal, defendant having by his
own act discharged the order. Ideal Furnace Co. v. In-
ternational Molders' Union, 311.
11. This court should, of its own motion, decline to consider
cases it has not the power to determine. Id.
12. In view of stipulation by counsel for defendant that an
inadvertent reference by the court in his charge to a
statute, under which plaintiff had claimed no rights, would
not be taken advantage of, on appeal, the question will
not be considered by this court. Ommen v. Grand Trunk
Western R. Co., 392.
13. Whether a verdict is against the great weight of evi
dence, under all the circumstances of the case, is pri-
marily for the trial court. Barger v. Bissell, 417.
14. On a record showing that the order of the trial judge
granting a new trial was by consent of counsel for both
parties set aside, after which judgment of "no cause of
action" was entered for defendant, the only question be-
fore this court for review is the validity of such judg-
ment, and this court although reversing the judgment
entered by the trial judge, will not reinstate the verdict
of the jury. Id.
15. An order of the circuit court, on appeal from the probate
court, reversing an order of the probate court, and direct-
ing distribution of a fund of $3,000 to persons other than
the one mentioned in the probate court order, is a final
determination of an amount exceeding the sum of $500,
under Act No. 172, Pub. Acts 1917, and the circuit judge,
in his discretion, had the right to grant an extension of
time in which to settle a bill of exceptions, although no
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