the former to complete satisfaction, and without doing injustice to third persons. NOTE. Each of several funds may be resorted to.— Farmers' Loan & Trust Co. vs. Walworth, 1 N. Y., p. 433. Another creditor, having resort to some, but not all, may require a resort by the former to those he has no claim on.-Ingalls vs. Morgan, 10 N. Y., p. 178; Besley vs. Lawrence, 11 Paige, p. 581; Hawley vs. Mancius, 7 Johns. Ch., p. 174; Welch vs. James, 22 How. Pr., p. 474. The former must not thereby be deprived of complete satisfaction.-Evertson vs. Booth, 19 Johns., p. 486; York and Jersey Steamboat Co. vs. Jersey Co., Hopk., p. 460; Herriman vs. Skillman, 33 Barb., p. 378. Nor must injustice result therefrom in anywise to third persons.-Reynolds vs. Tooker, 18 Wend., p. 591; Dorr vs. Shaw, 4 Johns. Ch., p. 17; Ex Parte Kendall, 17 Ves., p. 20. TITLE II. FRAUDULENT INSTRUMENTS AND TRANSFERS. SECTION 3439. Transfers, etc., with intent to defraud creditors. 3441. Creditor's right must be judicially ascertained. any etc., with defraud 3439. Every transfer of property or charge thereon Transfer, made, every obligation incurred, and every judicial intent to proceeding taken, with intent to delay or defraud creditors. creditor or other person of his demands, is void against all creditors of the debtor, and their successors in interest, and against any person upon whom the estate of the debtor devolves in trust for the benefit of others than the debtor. NOTE. Such acts are void against subsequent as well as prior creditors (King vs. Wilcox, 11 Paige, p. 589; Mills vs. Morris, Hoffm., p. 419; see Botts vs. Cozine, id., p. 79; Sands vs. Hildreth, 2 Johns. Ch., p. 35), even though intended to defraud prior creditors only.-Id; see Code Civ. Pro. Cal., Sec. 479 (273). "Fraudulent Conveyances and Contracts;" see this Certain transfers presumed fraudulent. Title, Hittell, Sec. 20. See 2 Hilliard on Torts, pp. 137-147, as to general rule constituting frauds. Fraudulent intent as to creditors, considered and stated, in Smith vs. '49 and '56 Mining Co., 14 Cal., p. 242; Taylor vs. Robinson, 14 Cal., p. 396; Cassin vs. Marshall, 18 id., p. 689. Conclusive proof is not contemplated by the statute.-White vs. Lazzinsky, 14 Cal., p. 165. Fraudulent intent gathered from circumstances (Purkitt vs. Polack, 17 Cal., p. 327), and subsequent acts (and circumstances probably), are frequently resorted to to prove fraud.-Butler vs. Collins, 12 Cal., p. 45. In the sale or disposition of property, the fraudulent intent is purely a question of fact for the jury.-Miller vs. Stewart, 24 Cal., p. 502; Richards vs. Schroeder, 10 Cal., p. 431; McKenty vs. Gladwin, Hugg & Co., 10 Cal., p. 227; Smith vs. Owens, 21 Cal., p. 11. If one of two persons must suffer by the fraud of another, that one who induced or enabled the fraud is the one to bear it.-Poorman vs. Mills, 39 Cal., p. 345. In what case the burden of proof of the fraud is on the attaching creditor.-Thornton vs. Hook, 36 Cal., p. 223; Marshall vs. Buchanan, 35 Cal., p. 264; Tully vs. Harlowe, 35 id., p. 302. A creditor may set aside a conveyance by debtor, without consideration, to affect a fraud, though the grantor was ignorant of the fraud intended.-Lee vs. Figg, 87 Cal., p. 328. 3440. Every transfer of personal property, other than a thing in action, or a ship or cargo at sea, or in a foreign port, and every lien thereon, other than a mortgage, when allowed by law, and a contract of bottomry or respondentia, is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in possession, and the successors in interest of such creditors, and against any persons on whom his estate devolves in trust for the benefit of others than himself, and against purchasers or incumbrancers in good faith subsequent to the transfer. NOTE.-Sec. 15 of the Act of April 19th, 1850, Hittell, 3159. right must judicially 3441. A creditor can avoid the act or obligation Creditor's of his debtor for fraud only where the fraud obstructs bo the enforcement, by legal process, of his right to take ascertained the property affected by the transfer or obligation. NOTE.-Andrews vs. Durant, 18 N. Y., p. 496; Reubens vs. Joel, 13 id., p. 488; Crippen vs. Hudson, id., p. 161; Bishop vs. Halsey, 3 Abb. Pr., p. 400; Frisby ys. Thayer, 25 Wend., p. 396; Thompson vs. Van Vechten, 5 Abb. Pr., p. 458. Question of fraud, how 3442. In all cases arising under Section 1227, or under the provisions of this Title, except as otherwise determined provided in Section 3440, the question of fraudulent intent is one of fact, and not of law; nor can any transfer or charge be adjudged fraudulent solely on the ground that it was not made for a valuable consideration. NOTE.-The verdict of a jury on this question is, however, subject to review in like manner as verdicts in other cases; and may be set aside as against evidence.-Marston vs. Vultee, 12 Abb. Pr., p. 143; 8 Bosw., p. 129. FRAUDULENT INTENT.-Alvarez vs. Brannan, 7 Cal., p. 503. Question of fact for the jury alone.Miller vs. Stewart, 24 Cal., p. 502. Statute does not contemplate conclusive proof of fraudulent intent.White vs. Lazinsky, 14 Cal., p. 165. This intent is seldom capable of positive proof, but must be gathered from circumstances.-Pinkitt vs. Polack, 17 Cal., p. 327. Subsequent acts are frequently resorted to to prove antecedent fraud being illustrative of the intent.-Butler vs. Collins, 12 Cal., p. 45; McDaniel vs. Baca, 2 Cal., p. 326. EVIDENCE OF FRAUD.-Contemporaneous acts of fraud.-Cohn vs. Mulford, 15 Cal., p. 50. Inadequacy of price not alone sufficient, but admissible.-Smith vs. Randall, 6 Cal., p. 47. Sale on credit, when presumptive proof.-Billings vs. Billings, 2 Cal., p. 107. General subject.-King vs. Davis, 34 Cal., p. 100; Adams vs. Hackett, 7 Cal., p. 187; Landecker vs. Houghtaling, 7 Cal., p. 391. Fraudulent statements of value.— Gifford vs. Carvill, 29 Cal., p. 589; McCarthy vs. White, 21 Cal., p. 495. TITLE III. ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. SECTION 3449. When debtor may execute assignment. 3450. Insolvency, what. 3451. Certain transfers not affected. 3452. What debts may be secured. 3453. What preferences may be given. 3454. Preference must be absolute. 3455. Certain rights not affected by preferences in assign ment. 3456. Joint and separate debts. 3457. Assignment, when void. 3458. The instrument of assignment. 3459. Compliance with provisions of last section necessary to validity of assignment. 3460. Assignee takes, subject to rights of third parties. SECTION 3461. Inventory required. 3462. Verification of inventory. 3463. Recording assignment and filing inventory. 3465. Effect of omitting to record. 3466. Assignment of real property. 3467. Bond of assignees. 3468. Conditions of disposal and conversion. 3469. Accountings. 3470. Property exempt. 3471. Compensation. 3472. Assignees protected for acts done in good faith. 3473. Assent of creditor necessary to modification of assign ment. debtor may execute assignment 3449. An insolvent debtor may, in good faith, When execute an assignment of property to one or more assignees, in trust for the satisfaction of his creditors, in conformity to the provisions of this Chapter; subject, however, to the provisions of this Code relative to trusts and to fraudulent transfers, and to the restrictions imposed by law upon assignments by special partnerships, by corporations, or by other specific classes or persons. NOTE.-See Sec. 3432, and note, ante. May make assignment, subject to restrictions of this Code, as to particular cases.-See Mills vs. Argall, 6 Paige, p. 577; Haggerty vs. Taylor, 10 id., p. 261; Robinson vs. McIntosh, 3 E. D. Smith, p. 221; Innes vs. Lansing, 7 Paige, p. 583; Whitewright vs. Stimson, 2 Barb., p. 379; Jackson vs. Sheldon, 9 Abb. Pr., p. 127; Heyes vs. Heyer, 3 Sandf., p. 284; Artisans' Bank vs. Treadwell, 34 Barb., p. 553; Fanshawe vs. Lane, 16 Abb. Pr., p. 71. "Corporations."-De Ruyter vs. St. Peter's Church, 3 N. Y., p. 238; Hurlburt vs. Carter, 21 Barb., p. 221; Hill vs. Reed, 16 Barb., p. 280; Bowery Bank Case, 5 Abb. Pr., p. 415; Heroy vs. Kerr, 21 How. Pr., p. 409; 8 Bosw., p. 194; Hoyt vs. Shelden, 3 Bosw., p. 267; Robinson vs. Bank of Attica, 21 N. Y., p. 406; Loring vs. U. S. Vulcanized Gutta Percha & B. Co., 36 Barb., p. 329. "Other specific classes of persons." As in the case of an assignment by an infant, or by a firm, one of whose members is an infant.-Fox vs. Heath, 16 Abb. Pr., p. 163; 21 How. Pr., p. 384. An assignment by a convict under sentence of imprisonment in a State Prison.-Miller vs. |