Mich. 574), the action of the auditor general was erro

neous.

The circuit court, by its decree, adjudged these lands to be chargeable with and subject to sale for the nonpayment of this tax. Muirhead v. Sands, 111 Mich. 487. The auditor general, by his action, has held that they were not, and the reasons alleged to justify such action are that the tax was not ordered, and that it had been reassessed. In short, he has reversed the decree of the circuit court.

Section 98, Act No. 206, Pub. Acts 1893, allows the auditor to cancel sales upon any one of three grounds:

1. That the land was not subject to taxation at the date of the assessment of the taxes for which it was sold.

2. That the tax had been seasonably paid.

3. That the sale was in contravention of some provision of the act.

None of these grounds are shown. The land was subject to taxation, the tax had not been seasonably paid, and no irregularity in the sale is shown. This order was therefore erroneous, and should be set aside. The plaintiff in certiorari should recover costs against Hinds.

GRANT, C. J., concurred with HOOKER, J.

LONG, J. I cannot agree with my Brother HOOKER in this case. Whether or not the common council had the power to cancel the tax of 1893 need not be discussed. Such action was taken by the council that the owner of the premises, Mr. Hinds, had the right to assume that he would not be called upon to pay the tax of 1893, as it was reassessed for the year 1894. It appears by the return of the auditor general that on November 30, 1897, Mr. Hinds, the then owner of the land, applied to him for the redemption of the land under the sale for the tax of 1894. This application was made within the time when such lands were redeemable after sale, and the auditor general very properly received the amount of the tax tendered at that time, and canceled the sale for the tax of 1893, which he

was empowered to do under subdivision 2, § 98, Act No. 206, Pub. Acts 1893. It is apparent that the owner of the land was led by the action of the common council to believe that by the reassessment in 1894 he would not be called upon to pay the tax within the time limited for the collection thereof under the assessment of 1893, and that a payment of it under the reassessment would be a full compliance with the statute. Feeling secure in this position, he delayed the payment until November 30, 1897, and then it was ascertained that the tax of 1893 had been returned to the auditor general, and a sale made thereunder, and his right to redeem apparently cut off. The auditor general, realizing this condition, and ascertaining that the owner had been misled by the public authorities, canceled the sale of 1893, and received the money in payment of the reassessed tax.

The proceedings in the premises must be affirmed, and writ of certiorari quashed.

MONTGOMERY and MOORE, JJ., concurred with LONG, J.

HARRIS v. O'GORMAN.

REPLEVIN-SPECIAL VERDICT-RETURN OF PROPERTY.

A verdict in replevin, simply that "defendant did not unlawfully detain," based on a plea of the general issue, which, under 2 How. Stat. § 8339, puts in issue, not only the detention of the property, but also the property of plaintiff therein, and his right to possession at the time of the commencement of the suit, does not entitle defendant to a return of the property.

Certiorari to Saginaw; Snow, J. Submitted October 25, 1898. Decided November 15, 1898.

Mandamus by Lovina Harris to compel John O'Gor

man, justice of the peace, to issue a writ of retorno habendo. From an order granting the writ, respondent brings certiorari. Reversed.

John E. Nolan, for relator.

James H. Davitt, for respondent.

MONTGOMERY, J. The Singer Manufacturing Company brought replevin before respondent to recover possession of a sewing machine, making one Lovina Harris defendant. On the trial the jury returned as their verdict that "the defendant, Lovina Harris, did not unlawfully detain said sewing machine." The judgment entered on the verdict was that the defendant did not unlawfully detain the said goods and property, and that she recover costs. Subsequently the defendant, Lovina Harris, applied to Judge Snow for a writ of mandamus directed to the justice to compel him to issue a writ of retorno habendo. The circuit judge granted the writ, and this ruling is before us for review.

The statute (section 8339, 2 How. Stat.) provides:

"The defendant may plead the general issue to such declaration, which shall be in the same form as in personal actions, and shall put in issue not only the detention of the property, but also the property of the plaintiff therein, and his right to the possession thereof at the time of the commencement of the suit, and under such plea the defendant may give notice of any special matter of defense to the action."

The question is whether, under such an issue, a verdict in the form in which that in question was given entitles the defendant to a judgment for the return of the property. The defendant is not in all cases entitled to a return of the property. It may appear that plaintiff is entitled to possession, and yet that judgment ought to go for defendant for the reason that he has not detained the property from the plaintiff. In such cases the verdict and judgment should be limited to a discharge of defendant and

costs in his favor. McGregor v. Cole, 100 Mich. 262; Farrah v. Bursley, Id. 547; Weber v. Henry, 16 Mich. 399.

It has been held that when the plea presents several issues, and the verdict is general, and broad enough to cover all the issues, as, for instance, "We, the jury, find the issues for the defendant," a return may be adjudged on such a verdict. Wells, Repl. § 753. But when there are several pleas, and the verdict is, "Not guilty," a return cannot be adjudged on such verdict. Hanford v. Obrecht, 38 Ill. 493; Ford v. Ford, 3 Wis. 399. It is well settled that at the common law the plea of non cepit does not entitle the defendant to the return of the goods. Pierce v. Van Dyke, 6 Hill, 613. And while, as we have seen, a verdict covering all the issues would entitle the defendant to a return of the property, as would also perhaps a general verdict for the defendant (Baldwin v. Burrows, 95 Ind. 81), in this case the verdict is not general, but limited to finding a single fact, viz., that defendant did not unlawfully detain the property. This verdict did not cover all the issues which defendant might have presented, possibly not all that she did present. She has, however, not appealed; and, unless we are to supply the defects in the verdict, we cannot treat it as a finding that she is entitled to a return of the property.

The circuit judge was in error.

versed.

The other Justices concurred.

The order will be re

WRIGHT v. AUDITOR GENERAL.

TAXES-BOARDS OF REVIEW-SUFFICIENCY OF MEETING. Under section 30 of the tax law of 1893, requiring township boards of review to meet on the fourth Monday in May, at 9 o'clock in the forenoon, and continue in session during that day and the day following, the failure of the board to meet until the second of the specified days will not avoid the tax, although the landowner appeared on the preceding day, and claims to have been unable to attend thereafter.

Appeal from Ogemaw; Sharpe, J. Submitted October 20, 1898. Decided November 15, 1898.

Bill by David Wright and another against the auditor general and others to restrain the collection of certain taxes. From a decree for defendants, complainants appeal. Affirmed.

McDonell & Hall, for complainants.

Albert E. Sharpe, for defendants.

MOORE, J. Complainants filed a bill to restrain the collection of certain taxes, and have appealed from a decree made against them by the trial court. The complainants are owners of a good many descriptions of land situated in various townships. For the purpose of having their lands properly assessed, they sent their agents, who were well acquainted with values, to attend the meeting of the board of review, whose duty it was to meet upon the fourth Monday of May at the office of the supervisor. They arrived at the office about 12 o'clock, and remained until about 3 o'clock. No member of the board of review was present during that time, and the board were not assembled as a board that day. These men were informed that the supervisor was absent from home, and