by any party may be subscribed by the lawful agent of such . party. Gen. Laws, 3162, 3163.

Hinder and Delay Creditors.

SEC. 32. Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands or in goods in action, or of any rents or profits issuing therefrom, and every charge upon lands, goods or things, in action or upon the rents and profits thereof, made with the intent to hinder, delay or defraud, creditors or other persons of their lawful suits, damages, forfeitures, debts or demands, and every bond or other evidence of debt given, suits commenced, decree or judgment suffered, with the like intent as against the persons hindered, delayed or defrauded, shall be void. Gen. Laws, 3164.

SEC. 33. The statute 13 Eliz. (Ch. 5) is the foundation of the acts on the subject of conveyances to hinder, delay or defraud, creditors in the several states, and has been substantially incorporated into our law. This statute declares all gifts, conveyances and alienations, of real or personal estate, whereby creditors may be delayed or defrauded, void as against such creditors; but judicial interpretation has determined that creditors at the time of the transaction are, alone, intended by the statute. Thus, a settlement made after marriage, and therefore considered voluntary, will be maintained against subsequent creditors: provided, the settler was not indebted at the time he made it. This general rule must, however, be qualified so as to exclude cases of positive fraud. It is not necessary that a man should be actually indebted at the time he enters into a voluntary settlement to make it fraudulent; if he do so with a view to his being indebted at a future time, it is equally a fraud and ought to be set aside. As against subsequent creditors, then, a conveyance even if voluntary is not void, unless fraudulent in fact: that is, unless made with the view to future debts; though evidence of an intent to defraud existing creditors is deemed sufficient prima facie evidence of fraud against subsequent creditors. 13 Cal. 71, 72.

SEC. 34. Every grant or assignment of any existing trust

.

in land, goods or things in action, unless the same shall be in writing, subscribed by the person making the same or by his agent lawfully authorized, shall be void. Every conveyance, charge, instrument or proceeding, declared to be void by the provisions of this act, as against creditors or purchasers, shall be equally void as against the heirs, successors, personal representatives or assigns, of such creditors or purchasers. The question of fraudulent intent in all cases arising under the provisions of this act shall be deemed a question of fact and not of law, nor shall any conveyance or charge be adjudged fraudulent as against creditors or purchasers solely on the ground that it was not founded on a valuable consideration. The provisions of this act shall not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration, unless it shall appear that such purchaser had previous notice of the fraudulent intent of his immediate grantor or of the fraud rendering void the title of such grantor. Gen. Laws, 3165-3168.

Intent.

SEC. 35. Fraud may be committed when there is no fraudulent intention actually existing in the mind of the party at the time the act was done. In other words, the law irresistibly draws the conclusion of fraud from certain established facts, without any further inquiry into the real motives of the party. 7 Cal. 355.

SEC. 36. To impeach a sale upon the ground of fraud, the fraudulent intent of both the seller and the purchaser must be shown. The declarations, as well as the conduct of the seller, before the sale, are competent testimony to show this fraudulent intent on his part. 8 Cal. 112, 113.

"Lands" and "Conveyances," Defined.

SEC. 37. The term "lands," as used in this act, shall be construed as coextensive in meaning with lands, tenements and hereditaments, and the terms "estate" and "interest" in lands, shall be construed to embrace every estate and interest, present and future, vested and contingent, in lands as above defined. Gen. Laws, 3169. The term "conveyance," as used in this act, shall be construed to embrace

Gen. Laws, 3169.

every instrument in writing, except a last will and testament, whatever may be its form, and by whatever name it may be known in law, by which any estate or interest in lands is created, aliened, assigned or surrendered. Gen. Laws, 3170.

As between the Parties.

SEC. 38. Crops, growing upon land, are not goods and chattels within the meaning of the statute of frauds, and will pass by deed or conveyance from the very necessity of the case, as they are not susceptible of manual delivery until harvested and reduced to actual possession. 6 Cal. 664.

SEC. 39. A sale of property, however fraudulent as to creditors, is good as between the parties to the sale. 5 Cal. 368.

SEC. 40. In a case between two purchasers of the same property from the same fraudulent vendor, where the only question regards the person who must sustain the loss, if both purchasers were equally in fault or equally innocent, then the first purchaser is entitled to the property. 8 Cal. 560.

Proof of.

SEC. 41. It is never to be presumed that a party has committed a fraud, and where fraud is alleged for the purpose of depriving him of a right, the facts sustaining it must be clearly made out. 21 Cal. 503.

SEC. 42. What the law has tainted with fraud, in its inception, can lose none of its concomitants by passing through a multiplicity of hands. 6 Cal. 140.

SEC. 43. An action founded upon a fraud cannot be maintained by a party to the fraud. 26 Cal. 310.

CHAPTER LIII.

CONFUSION OF GOODS.

SECTION 1. If one man mixes his corn or flour with that of another, and they were of equal value, the latter must have the given quantity; but if articles of different value are mixed, producing a third value the aggregate of both, and through the fault of the person mixing them the other party cannot tell what was the value of his property, he must have the whole. 9 Cal. 660.

SEC. 2. But it will be observed that when articles of different values are mixed, producing a third value, the innocent party is only allowed the whole in case he cannot tell the original value of his property. Even in case of such a mixture, if the original value of the property mixed can be ascertained, the party can only claim that value, except the mixture be willfully made with intent to injure, or from gross negligence. 9 Cal. 660.

SEC. 3. Where an agent confounds his principal's property with his own, it devolves upon the agent to distinguish his own portion, otherwise the principal may take the whole. 9 Cal. 661.

SEC. 4. A party is not compelled to pay for improvements that he has never authorized and which originated in tort. If every man ought to have the fruits of his own labor, that principle can apply only to a case where the labor has been lawfully applied, and the other party has voluntarily accepted those fruits, without reference to any exercise of his own rights. For, if in order to avail himself of his own vested rights and use his own property it be necessary to use the improvements wrongfully made by another, it would be strange to hold that a wrong should prevail against a lawful exercise of the right of property. In case of a tortious confusion of goods, the common law gives the sole property to the other party. 7 Cal. 9.

CHAPTER LIV.

INJURIES TO PERSON AND CHARACTER-MALICIOUS PROSECUTION.

SECTION 1. Injuries to Person and Character.-Cases from New York cited to show that, though there, as here, the statute provides, a claim for injuries to the person shall not be joined with a claim for injuries to character, yet if the facts of the whole case or transaction embrace an injury to the person and also an injury to the character, then plaintiff may recover in one action for the compound injury. Jones vs. Steamship Cortez, 17 Cal. 487.

SEC. 2. In order that a party in an action for malicious prosecution may avail himself of the defense of advice of counsel, he must show that such advice was given upon a full and fair statement of the facts within his knowledge. 7 Cal. 257, 258.

INJURY TO PERSONAL PROPERTY.

SECTION 1. Personal property is divided into two kinds: Property in possession and property in action, and the owner may have as absolute a property in, and be as well entitled to, such thing in action as to things in possession. 7 Cal. 203.

SEC. 2. The general rule is, that every man may do as he chooses with his own property, provided he does not injure another's. But there is another rule as well established, which is, that a man must so use his own property as not to injure his neighbor's. This last rule, however, does not make a man responsible for every injury which may arise to another from the use which the first may make of his property. It would be an intolerable hardship to hold a man responsible for unavoidable accidents which may occur to his property by fires or casualties or acts beyond his control, though others are likewise injured. The degree of negligence which will subject the owner to