
    In The Matter of John Hicks and Joshua Hicks.
    The giving of a second mortgage before the filing of the first, with a view to giving the second mortgagee a priroity, renders the mortgagor Hable as a wrong doer, and he may be proceeded against by capias.
    Error to Ionia Circuit.
   Opinion by

Campbell, C. J.

The parties who were discharged under a habeas corpus proceeding, were arrested on a capias ad respondendum, sued out for an alleged injury, for which redress was sought by an action on the case in the nature of an action of trover. The validity of the arrest depended upon the affidavit, which set out these facts:

That March 24, 1869, the Fulton Iron and Engine Works of Detroit, sold to the Hicks Brothers at Saranac, some machinery, the purchasers paying $800 in cash and giving their notes and chattel piortgage for the balance. The mortgage was sent by the Fulton Works to, the Detroit & Milwaukee Railroad agent at Saranac, together with the property, with instructions to deliver the latter to the Hicks Brothers upon their obtaining from the land on which the mill, which was to contain the machinery, was to be erected, a recognition of the right of the \Fulton Works to the property. The recognition was endorsed on it, and the mortgage was recorded in the town clerk’s office at Saranac. April 1, 1869.

March 29, while a part of the mortgaged property was in the possession of the Railway, the Hicks Brothers purchased on credit, a lot of logs from Charles Macomber, and gave a second chattel mortgage upon the machinery and upon some logs to secure the payment of $9,859, which mortgage was filed with the Town Clerk in the evening of March 30.

The objections to the affidavit were ; First, that if the second, mortgage was by these acts given priority, that could not give any cause of action for the injury; Second, that it does not appear that any such priority was gained.

Hr.kl, That the sale in this case passes the property to the Hicks Brothers, and that their action in making the second mortgage made the Hicks Brothers responsible as wrong doers and the affidavit justified the arrest.

Judgment of discharge reversed with costs.  