ship of the apples was the question in issue. The actual possession of the property at the time was only evidence of title. The plaintiff may have been in possession of the property at the time of the levy without ownership there

in.

The instruction quoted above was not qualified or explained by other instructions given.

Judgment and order reversed, and cause remanded for a new trial.

MCKINSTRY, J., and SEARLS, C. J., concurred.
Hearing in Bank denied.

[No. 11097. Department One.-June 15, 1888.]

CARL H. BERNHEIM, APPELLANT, v. J. F. CHRISTAL ET AL., RESPONDEnts.

INSOLVENCY-CONFESSION OF JUDGMENT-PREFERENCE OF CREDITOR.The confession of judgment by an insolvent debtor wil! not alone sustain a suit by the assignee of the insolvent debtor to set aside a lien acquired under execution upon the judgment, if the creditor did not know of the insolvency, or of the existence of other claims against the debtor, and had no design to secure a preference over other creditors.

ID. TRANSFER OUT OF COURSE OF BUSINESS-FRAUD.-A transfer by an insolvent debtor not made in the usual and ordinary course of business is only prima facie evidence of fraud, and may be overcome by proof that the creditor acted in good faith, without knowledge of the insolvency, and without intent to secure a preference over other creditors.

NEW TRIAL-CONFLICTING EVIDENCE.-An order granting a new trial will be affirmed when the evidence is conflicting.

APPEAL from an order of the Superior Court of Santa Cruz County granting a new trial.

The facts are stated in the opinion of the court.

J. M. Lesser, and Naphtaly, Freidenrich & Ackerman, for Appellant.

Charles B. Younger, for Respondents.

PATERSON, J.-This is an action brought by the plaintiff as assignee of one O'Donnell to set aside a lien by judgment and execution claimed to have been obtained contrary to the provisions of the insolvent act of 1880.

In 1882 O'Donnell borrowed one thousand dollars from Christal, and gave a note therefor, payable in ninety days. On the 3d of March, 1883, Christal commenced an action on the note, and on the same day O'Donnell filed a verified answer admitting each and every allegation of the complaint, and consenting to a judgment against himself as prayed for. On the same day judgment was entered, execution issued and placed in the hands of the sheriff, and a levy made on the merchandise of O'Donnell. Immediately thereafter, involuntary proceedings in insolvency were instituted by the San Francisco creditors of O'Donnell, and thereafter an order was made declaring said O'Donnell to be an insolvent debtor.

seized on execution, . the

....

Section 55 of the insolvent act reads as follows: "If any person being insolvent, or in contemplation of insolvency, within one month before the filing of a petition by or against him, with a view to give a preference to any creditor or person having a claim against him, procures any part of his property to be .. person. . . . to be benefited by such seizure, having reasonable cause to believe that such person is insolvent, and that such . . . . seizure . . . is made with a view to prevent his property from coming to his assignee in insolvency, or to prevent the same from being distributed ratably among his creditors, or to defeat the object of, or in any way hinder, impede, or delay the operation of, or to evade any of provisions of this act, such transfer, payment, conveyance, pledge, or assignment is void." The fact that a transfer is not made in the usual and ordinary course of business is only prima facie evidence of fraud. (Insolvent Act of 1880, sec. 55.) The evidence shows that Christal had

made several demands upon O'Donnell for payment of the money after it became due, and before he commenced his action. The defendant testified that he did not know that O'Donnell was insolvent, or that he owed any one except himself; that he had no idea of trying to get ahead of O'Donnell's creditors, and did nothing to prevent O'Donnell's property from being distributed among the creditors; that O'Donnell did not offer any preference, or ask him to bring the suit, or talk with him at all about it, except that he consented to file an answer, doubtless to save costs of summons and attachment. The matter seems to have been left by the defendant to his attorney entirely, and without any intention whatever of securing any preference over the other creditors. Upon the showing, we cannot see that the court erred in granting a new trial. Considering all the presumptions in the case, and the testimony of the witnesses, it must be conceded the evidence is conflicting.

Order affirmed.

MCKINSTRY, J., and SEARLS, C. J., concurred.

[No. 11032. Department Two.-June 15, 1888.]

JOSEPH SCHEERER, RESPONDENT, v. WILLIAM M. EDGAR, AUDITOR OF THE CITY AND COUNTY OF SAN FRANCISCO, APPELLANT.

MANDAMUS. ASSIGNMENT OF JUDGMENT-COUNTY WARRANT-DUTY OF AUDITOR.-The auditor of the city and county of San Francisco can only draw his warrant in satisfaction of a judgment against the city and county in favor of the person to whom the board of supervisors have ordered the judgment to be paid; and if they have ordered it paid to the plaintiff, and the warrant has been drawn in his favor by the auditor, though after notice of an assignment of the judgment, the only remedy of the assignee is to compel a transfer of the warrant, and he cannot obtain a writ of mandate to compel the auditor to draw a warrant in his favor. The auditor may refuse to draw an illegal warrant, but cannot substitute his own affirmative action for that of the board.

APPEAL from a judgment of the Superior Court of the city and County of San Francisco and from an order refusing a new trial.

The facts are stated in the opinion.

George Flournoy, Jr., for Appellant.

George E. Lawrence, for Respondent.

FOOTE, C.-This is an action instituted for the purpose of compelling, by a writ of mandate, the auditor of the city and county of San Francisco to draw his warrant on the treasurer in favor of the assignee of a plaintiff who had obtained a final judgment for a sum of money against said city and county.

It appears that Paul Friedhofer was the plaintiff for whom the judgment was rendered; that before the auditor drew his warrant on the treasurer, the judgment had been assigned by Friedhofer to the petitioner in this action; that the auditor had notice of the assignment, but drew the warrant in favor of Friedhofer, the person ordered paid by the board of supervisors.

The court below gave judgment in accordance with the prayer of the petitioner, and from that and an order denying a new trial this appeal is taken.

The authority of the auditor to draw his warrant on the treasurer for the payment of a final judgment against the city and county depends upon section 2 of an act approved April 23, 1858, to be found on page 42 of Worley's compilation of the consolidation and other acts relating to the government of the city and county of San Francisco, which is as follows:

"Sec. 2. The auditor of said city and county is hereby authorized to audit. . . any and all sums that may be allowed and ordered paid by said board of supervisors by authority of this act."

Another part of this act gives the board power to

"order paid any final judgment against said city and county."

It is unnecessary to discuss here the question as to whether that act has been so amended as that such judgments must be paid out of the general rather than the surplus fund. The order made by the board for the auditing and payment of the judgment in controversy is in this language:—

"Authorization No. 3496.-Resolved, That an expenditure of two thousand and forty-nine 47-100 ($2,049.47) dollars be and the same is hereby authorized to be made out of the general fund in payment to Paul Friedhofer in satisfaction of judgment rendered for plaintiff and against the defendant in the suit of Paul Friedhofer v. The City and County of San Francisco, in the superior court, department 3, for the sum of $1,756, with costs and interest, as follows:

Admit that the auditor had notice that the judgment upon which this authorization was issued had been assigned to the plaintiff before he drew his warrant for the payment of it to Paul Friedhofer, and then the question presents itself, Did he then have, or has his successor now, any right under the law to recognize any one as entitled to have him draw a warrant in his or her favor, except the person or persons specified in the order made by the board? If the auditor, as we think is here shown by the complaint and the findings, drew the warrant as he was authorized under the order of the board to do, and the person there nominated as the one entitled to it received it, is not his duty as a ministerial officer performed?