second and third wards are not sufficient to defeat recovery. The suit is not founded on any default in making collection. Neither is it an action against delinquent tax payers. Its object is to recover from the officer and his sureties, for the benefit of the state and county, the very money which he as treasurer actually received for them and wholly fails and refuses to account for and pay over. The money went into his hands. He received it in payment of taxes, and as money belonging to the public. Whose money is it? Those who were assessed voluntarily paid it in satisfaction of their tax dues and in the discharge of their duty as citizens, and he as city treasurer accepted and received it as money of the public which it was his official duty and province to receive and take care of for the public benefit. It was not his when it was paid and received and has not become his since. It belongs to the State and county. Can it be an answer to this suit brought for its recovery to say: true, the money was so paid and received and has not been accounted for; but it could not have been obtained if the tax payers who freely paid and do not complain had held back for compulsory measures? We think not. Whether it went into Bunbury's keeping by the right hand or the left, on papers regular or irregular, with or without a warrant, makes no difference. Its ownership in equity and his legal responsibility were the same. It was paid and received as tax money, and it was covered by his duty as city treasurer and by his bond. The doctrine rests on policy, reason and authority. King v. United States 99 U. S. 229; Gwynne v. Burnell 7 Clark & Finn. 572; Mason v. School District 34 Mich. 228; Clark v. Fredenburg 43 Mich. 263. We have referred already to the peculiarity of the judge's findings. He was of opinion that the sureties were not liable for any amounts received for taxes in the second and third wards because no warrant was attached to the roll for those wards, and that the amount found to have been paid over was required to be credited against the roll for the first and fourth wards on which there was a warrant. He found, as natter of fact, that an amount was actually paid over not only equal to the whole sum spread on the roll for the first and fourth wards ($3305.87) but $76.85 in excess, and that there was collected from the tax payers of the second and third wards on the part of Bunbury $3459.38 and by Platt, his successor, $220. The judge's theory of the law enabled him to dispense with further facts. Holding that there was no liability on account of the second and third wards because there was no warrant, and that the amount paid in cancelled the entire assessment in the first and fourth wards where there was a warrant, the sum collected in the latter wards was immaterial. He therefore made no finding of the amount actually collected in such wards. But as this court finds the law to be, it is necessary to have a finding on that subject, and we think it must be practicable. The sureties are not liable in this action for moneys not collected, nor for moneys lawfully accounted for, and as the finding now stands it carries with it an assumption that the sureties may be charged, not merely for what was collected in the first and fourth wards, but for the entire amount assessed, whether collected or not. The probabilities are very great that much less than the whole assessment was in fact collected. The aggregate of collections in both districts, as well as the aggregate of payments over, ought to appear. Otherwise there can be no accurate basis for a judgment. The case might have been sent back without discussion on the points of law, and such would have been the usual course. But as the controversy is one of public importance, and has been pending many years, and further litigation may possibly be averted, we have deemed it expedient to express our opinion on the ruling questions because we have no doubt about them. The case must go back, and in case the parties think best to continue the litigation there must be another trial. The treasurer will recover his costs of this court. The other Justices concurred. THE MICHIGAN CENTRAL RAILROAD COMPANY V. MOSES A. Ejectment-Plea puis darrein demurrable generally. The right of action in ejectment is not lost by conveying the premises after suit is brought; and a plea of such conveyance puis darrein continuance is demurrable generally. The rule invalidating a conveyance if the grantor is not in possession and the property is held adversely by another, is not in force in Michigan. Ejectment under Michigan statutes is substantially a real action and is a proceeding to try titles as well as to determine who has the right of possession. It applies where the remedy formerly was a writ of right. It is the only action for determining titles to land. Comp. L., § 6232, in providing that if the title of plaintiff in ejectment expires after the commencement of the suit and before trial, he is still entitled to judgment for his damages, contemplates cases in which terms and rights expire, and not to cases where the right or title is simply transferred. Judgment in ejectment relates back to the beginning of suit. Error to Jackson. Submitted Oct. 20. Decided Jan. 5. Affirmed. Gibson & Parkinson and G. V. N. Lothrop for plaintiff in error. The plaintiff in ejectment must not only have a right of possession on beginning suit, but at the time of trial: 3 Wait's Actions 11; Tyler on Ejectment 75-7; Adams on Ejectment 32; Doe v. Lewis 29 Ga. 45; Cheney v. Cheney 26 Vt. 606; Cresap v. Hutson 9 Gill 269; Alden v. Grove 18 Penn. St. 377; Torrance v. Betsy 30 Miss. 129; M'Culloch v. Cowher 5 Watts & Serg. 427; Munsel v. Sanford 1 Root 257; Lathrop v. Demont 9 Johns. 55; City of Cincinnati v. Lessee of White 6 Pet. 441. John D. Conely for defendant in error. Ejectment under Michigan statutes is a real action, People v. Judge of Wayne 24 Mich. 42; Beebe v. Elliott 4 Barb. 457; Briggs v. Wells 12 Barb 567; Bates v. Stearns 23 Wend. 481; a statutory provision that where the right of plaintiff in ejectment has 113 455 terminated since action was brought verdict shall correspond, does not refer to a mere transfer of title (Moss v. Shear 30 Cal. 467). See generally as to the case, Miles v. Caldwell 2 Wall. 35; Jordan v. Ping 32 Iowa 64; Hearne v. Erhard 33 Tex. 60; Jenney v. Potts 41 Mich. 52. GRAVES, J. McNaughton brought an action of ejectment against the railroad company for certain premises in Jackson and the usual plea to the merits was regularly interposed. Subsequently and after the lapse of a term the company by leave of the court introduced a new plea which set up a conveyance by the plaintiff, after the last continuance, of all his estate in the premises to Mary R. McNaughton. The plea prayed judgment that the plaintiff be not allowed to further maintain the action. The plaintiff filed a general demurrer to the plea and demanded judgment for the premises and the railroad company joined in the demurrer. The circuit court sustained the demurrer and entered final judgment that the plaintiff recover in fee, that being the estate claimed in the declaration. The case comes up on a writ of error brought by the railroad company. Formerly ejectment was a mere possessory action which concluded no one either as to the title or possession exclusive of the period between the day of the demise and the recovery. The very party defeated might immediately bring a new action and litigate relative to the possession as often as he thought proper. In the form which it acquired later the machinery of the action was made to embrace a series of legal fictions in the place of certain of its early actualities. The real claimant was supposed to have entered on the land and there made a lease, and thereupon to have retired leaving his lessee in possession under the demise and that the person previously in possession or some casual ejector came thereupon and expelled, ejected or ousted him. These supposed proceedings were necessary to satisfy the theory of the action, and being assumned, a ground was presented for inquiring into the right of possession, the contest being in form between a fictitious lessee and the ejector, but in substance and effect between the lessor, the real clainant, and the true. tenant or adverse holder. This mere glance is hardly sufficient to convey a distinct idea of the nature of the former action. But a full explanation would be tedious and the case does not call for it. The learning of the bar will supply everything. It was a part of the same system of law, which still prevails in New York and in most of the other states, that a conveyance by a party out of possession and during the existence of an adverse possession against him, was void. This principle was not allowed, however, to operate against the actual or ideal lease by the real claimant in ejectment. But wherever it obtains it is an insuperable obstacle to a conveyance by the plaintiff in ejectment. A mere release has not been considered as within the rule. The decisions can only be understood by reading them in the light of the law relating to real property and of the procedure for its recovery where they are made Where a general demurrer was put in to a plea puis darrein continuance, setting up that one of the two separate lessors had released to the defendant, the court, in sustaining the demurrer, observed that as long as the remedy by ejectment was held a legal fiction and not a mere equitable remedy it seemed impossible to maintain the plea which was in effect that, after the lessor had made a lease and parted with his interest to the lessee, he made a release of the lessee's interest. Doe ex dem Byne v. Brewer 2 Chitty 323. In Robinson v. Campbell 3 Wheat. 212, the lessor conveyed pending the action. The deed was offered in evidence and refused, and the question was saved by an exception. The court said, although an action of ejectment is founded on fictions, yet to certain purposes it is considered in the same manner as if the whole proceedings were real; for all the purposes of the suit the lease is to be deemed a real possessory title. If it expire during the pendency of the suit the plaintiff cannot recover his term at law without procuring it to be enlarged by the court, and can proceed only for antecedent damages. In the present case the lease is to be |