in justice court in a cause wherein John O'Brien was plaintiff, and James O'Brien was defendant. A number of questions were raised and brought here for review, but as a fatal error is met at the outset, which goes to the foundation of the entire defence, we need not examine further. The suit in justice court was, by consent of parties, set down for trial on June 13, 1878. On that day the parties appeared and proceeded to trial. After the evidence was all in the justice's docket shows that he took four days, under the statute, to decide the matter, and on June 17th rendered judgment in favor of the plaintiff.

On the eighteenth day of June the plaintiff made and filed with the justice an affidavit for a transcript of the judgment, which was made out June 19th, and filed in the circuit court on June 20th, and an execution issued thereon, and forwarded to the sheriff on the same day. It was by virtue of this execution the sheriff seized the property in question.

The statute provides that whenever an execution may by law be issued upon any judgment rendered by a justice of the peace, for twenty dollars or over, exclusive of costs, an affidavit may be made, and a transcript of the judgment and proceedings in the case made and filed in the circuit court. 2 Comp. Laws, §§ 5382 5383.

In a case like the present, which was commenced by summons, executions shall issue at the expiration of five days from the rendering of the judgment. Id. § 5395. There are other sections which point how and in what cases an execution may be sooner issued, but the case does not come within any of them.

June 23d was the earliest period at which a transcript of the judgment could have been made and filed in the circuit. The whole proceeding in reference to transcripts is statutory, and must be strictly followed. The transcript, when filed in the circuit, was unauthorized, and no valid execution could be issued thereon, and the sheriff had no valid judgment under which he could justify in this case.

The judgment must therefore be reversed, with costs, and a new trial ordered.

(The other justices concurred.)

THOMAS D. DEWEY and others vs. CLARISSA S. INGERSOLL and others.

Filed October 28, 1879.

While a mortgagee is not bound, before releasing a portion of the mortgaged premises, to make an examination of the record for subsequent conveyances, still if he has notice of facts and circumstances sufficient to put a careful, prudent man on inquiry as to matters which the record would disclose, he should, if he desires to act fairly, examine them. Mortgagee in this case held to have sufficient notice to put him on inquiry as to the rights of a subsequent purchaser.—[ED.

Appeal from Shiawassee.

Gould & Lyon, for complainant.
Jerome Turner, for defendant.

MARSTON, J. According to the undisputed facts in this case the defendant Agnes A. Dakin was in the actual, unequivocal possession of a portion of the mortgaged premises, claiming title thereto under her deed of November 25, 1872, which had been recorded November 26th, at the time complainants released from this mortgage a part of the premises in the fall of 1873.

This release does not appear to have been made at her request, or with her consent or knowledge, and the important question is whether complainant, at the time of the release, had notice of Mrs. Dakin's rights in the premises. If they did have, it is not claimed that they can, under the facts in this case, subject her portion to the payment of their mortgage.

A mortgagee is not bound to make an examination of the records before releasing a portion of the mortgaged premises, as the record of a subsequent conveyance or mortgage on the whole or a portion of the mortgage premises would not be notice to him. James v. Brown, 11 Mich. 26; Thomas on Mortgages, 137; Jones on Mortgages, § 562. But the recording of such subsequent conveyances may become material, where it appears the prior mortgagee had notice of facts and circumstances sufficient to put a careful, prudent man upon inquiry. In such a case the public records furnish the information, if he desires to act fairly, and a failure to examine them would show an intentional disregard by him of the rights of the subsequent purchaser. See authorities above cited.

The mortgaged premises in this case were upon one of the principal streets in the village where the mortgagees resided. Mrs. Dakin promptly recorded her deed and went into the

actual possession of the premises, made improvements and resided thereon, and there is no evidence tending to show that one of the mortgagees had actual notice of these facts; and he, although examined as a witness, did not deny having notice. Under such circumstances we are of opinion that he had sufficient notice to put him upon inquiry, and that he is chargeable with a knowledge of the facts which such inquiry would have given.

I am of opinion that the decree should be affirmed, with costs.

(The other justices concurred.)

CHARLES A. WATSON and others vs. THEODORE H. HINCHMAN and others.

Filed October 28, 1879.

One member of a firm cannot be held, under the statute for the punishment of fraudulent debtors, (chapter 230, C. L.,) for any mere constructive fraud, or where he is guilty of no personal delinquency, and the act complained of is the immoral conduct of another.

A complaint under such act charged that the firm, consisting of three members, had assigned, secreted and disposed of their property to defraud creditors, and also that two of them had done so. The finding of the commissioner was that the partner arrested failed to account for firm assets and such property as the firm had received, and satisfactorily explain the doings of the three partners. Held, that his commitment was erroneous.-[ED.

Certiorari to circuit court commissioner.
Wisner & Speed, for plaintiff.

Griffin & Dickinson, for defendant.

GRAVES, J. The plaintiff brings this certiorari to revise proceedings taken before a circuit court commissioner against him under the statute for the punishment of fraudulent debtors. Chapter 230, C. L.

The defendants complained to the commissioner that the firm of Watson, Waite & Co., composed of Charles Watson, (the present plaintiff,) Williant Waite and. Thomas G. Sutherland, were indebted to them on contract, and that complainants had commenced a trial against said partners for such indebtedness in the superior court of Detroit. As ground for the application to the commissioner the complaint set up that Watson, Waite & Sutherland had assigned and disposed of this property with intent to defraud their creditors, and that Watson and Waite had assigned and disposed of their property with such intent.

The commissioner issued his warrant against the three partners, but no one besides Watson was taken, and the case was prosecuted against him individually. Considerable testimony was taken, and numerous questions raised which will not be noticed. At the close the commissioner prepared a written statement of his views, and placed it on file. While we do not decide that this formality was necessary, we have no doubt of its regularity and propriety. It was certainly competent for the commissioner, and was good practice, to put his determination in writing and explain upon the record the way he found upon the facts, and, having done so, his finding is to be consulted as the medium of his judgment. The first inquiry is whether the complaint, finding and final judgment are compatible and agreeable to law.

The proceeding was prosecuted before the commissioner on the theory that Watson was bound to satisfactorily account for the effects that had gone into the hands of the firm, and not only give such transactions and results as were brought about by himself, but such also as were brought about by either of his partners.

We are satisfied that no one under this statute can be held for any mere constructive fraud, or where he is guilty of no personal deliquency, and the act complained of is the immoral conduct of another; and we are quite certain that the law will not command a person, at the peril of being committed as a fraudulent debtor, to discover what he cannot be presumed to know, and to fully account for operations involving the transactions of others, and which transactions no one can assume he has the means of knowing or explaining.

Now the statute allows final commitment only for some one or more of the acts specified in section 7177, C. L., and charged in the complaint; and we have seen that the misconduct charged was-First, against all three of the firm; and, second, against Watson & Waite; and was confined to the definition in the third subdivision of said section. It was that the parties had assigned and disposed of their property with intent to defraud, etc.

The finding is that Watson failed to account for the firm assets, and such property as the firm had received, and satisfactorily explain the doings of the three partners.

We are not able to read it in any sense more conformable to the complaint. The proceedings are inconsistent with themselves, and not reconcilable with the statute. The effect of the commissioner's action was to acquit of the charge actu

ally made, and convict of one neither suggested by the complaint nor authorized by the statute. The case has several aspects which would justify discussion, but it is unnecessary to go further.

The commitment was erroneous and the conviction must be quashed, with costs.

(The other justices concurred.)

A contract provided that plaintiff should receive a certain sum per ton for all ore delivered in cars-settlement to be made on monthly estimate, defendant agreeing to furnish a barn and blacksmith shop free, and put up other buildings for plaintiff's use, for which monthly rent should be paid. Held, that in action for price of ore delivered, defendant may show rent due as payment and defence thereto.-[ED.

Error to Marquette.

W. P. Healy, for plaintiff in error.

M. H. Crocker and Dan. H. Ball, for defendant in error. MARSTON, J. Gingrass brought assumpsit to recover a balance claimed by him, the greater portion of which, it appeared upon the trial, had been earned under written contract. The defendant sought to introduce as payment rent due under the same contract from the plaintiff to the defendant, which was objected to and excluded.

In this we are of opinion the court erred. The contract provided that the plaintiff should receive one dollar and fifty cents per ton for ore delivered by him on the cars; and this was to be paid for monthly by estimate, the final settlement to be by railroad weights. The defendant agreed in this contract to furnish Gingrass with a barn and blacksmith shop free of charge or rent, and to put up what buildings they deemed necessary, and Gingrass agreed to pay the company monthly a reasonable rent for the same.

It cannot well be supposed either party contemplated that when the monthly estimate and settlement were made the company should pay in full the amount due Gingrass for ore delivered, without deducting therefrom the amount of rent due from Gingrass for the use of the buildings; or that the company should pay him in cash according to the monthly estimate of ore delivered, and then he pay back the amount of rent due.