debts from his own means as they became due. When this is the condition of a debtor, he is, within the meaning of the act of 1880, insolvent. The definition of insolvency, given above, is that stated in the title of the Civil Code in regard to assignments for the benefit of creditors (Civ. Code, sec. 3450), and we can see no reason why this is not correct under the insolvent act of 1880. That the defendants were aware that Jones's financial condition was precarious is shown by their application for the transfer made to them as security. If the defendants had pursued the inquiry, they would have found a state of things existing such as was disclosed by Jones's testimony, in which a statement of his assets and liabilities appear, and this statement, in our judgment, shows that Jones was, on the day when he made the transfer, insolvent. We entertain no doubt that the finding that when the defendants accepted the transfer of the accounts from Jones they had reasonable cause to believe that he was insolvent, is sustained by the evidence.

We think that the court correctly found that the assignment to defendants was out of the usual and ordinary course of business of the debtor, Jones, and there is no evidence to the contrary.

By the last clause of section 55 of the insolvent act of 1880 (constituting article 8, and relating to fraudulent preferences and transfers), in reference to such assignment as is spoken of above, it is provided that if such assignment "is not made in the usual course of business of the debtor, that fact shall be prima facie evidence of fraud."

And fraud mentioned in to mean fraud on the pro(See the following cases Meyer, 2 N. B. Reg. 422;

The same clause will be found in section 35 of the late United States bankrupt act. this clause has been construed visions of the bankrupt act. in which it was held: In re In re Hunt, 2 N. B. Reg. 542; In re Dean, 2 N. B. Reg. 91; Collins v. Bell, 3 N. B. Reg. 587; Martin v. Toof, 4

N. B. Reg. 492, 493.) And we think this construction should be adopted here, that the fraud mentioned in the clause of the fifty-fifth section above cited means fraud on the provisions of the insolvent act.

In this view, the transfer to the defendants being out of the usual and ordinary course of business of the debtor, it is prima facie evidence that the defendants had reasonable cause to believe when such assignment was made and accepted by them that it was made with a view to prevent the debtor's property assigned to defendants from coming to his assignee in insolvency, and to prevent the property of the debtor from being distributed ratably among his creditors. There being no evidence to rebut the prima facie case of fraud so established, it must be held to be conclusively established that the assignment to defendants was made with the view above stated. (See Ohleyer v. Bunce, 65 Cal. 544.)

The action was brought to recover possession of the orders mentioned above, or the value thereof, stated to be $383, in case delivery of the orders could not be had.

The court below held as a conclusion of law from the facts found that the plaintiff was entitled to judgment for $250, and ordered that judgment be entered accordingly, which was done; but the court did not find as a conclusion of law that he was entitled to a recovery of the orders sued for.

It is provided by section 667 of the Code of Civil Procedure that in an action to recover the possession of personal property judgment for the plaintiff may be for the pos-. session, or the value thereof in case a delivery cannot be had, and damages for the detention. Thus a clear and statutory rule is laid down as to the judgment which shall be entered, and we cannot perceive that a judgment can be entered for the alternative value, unless it is found that the plaintiff is entitled to recover the property sued for. This omission to find whether or not the plaintiff was

LXXVIII. CAL-37

entitled to recover the orders sued for was error.

The judg

ment as entered is also erroneous. If the plaintiff is not entitled to recover the property sued for, we cannot see that he is entitled to a judgment. If he is entitled to recover such property, the judgment must be as prescribed in section 677 of the Code of Civil Procedure. (Berson v.

Nunan, 63 Cal. 552.)

The judgment is therefore reversed, and the cause remanded, with directions to find on the facts found whether or not, as a conclusion of law, the plaintiff is entitled to recover the orders sued for, and to enter judgment in accordance with such finding; that is to say, if it is determined on the facts found that plaintiff is entitled to recover the orders (the value of which have been found to be $150), that judgment be entered as provided in section 667 of the Code of Civil Procedure; if it is determined that plaintiff is not entitled to recover the orders, judgment should be entered for defendant.

Ordered accordingly.

MCFARLAND, J., SHARPSTEIN, J., WORKS, J., and BEATTY, C. J., concurred.

Rehearing denied.

[No. 11632. Department Two.-April 18, 1889.] JOSEPH J. HIGGINS, RESPONDENT, v.

DEENEY ET AL., APPELLANTS.

WILLIAM

NEGLIGENCE-INJURY TO INFANT IN ATTEMPTING TO CROSS A STREETCONTRIBUTORY NEGLIGENCE OF MOTHER.-The action was brought to recover damages for personal injuries caused to the plaintiff's child, two years and five months old, by being run over by a team of horses and wagon belonging to the defendants. The evidence showed that the mother of the child was walking along the street, leading the child by the hand, and carrying another infant in her arms, and had just arrived at the street crossing when she saw the defendants' wagon coming upon the other side of the street. As she was pre

paring to cross the street, she felt her infant slipping from her arms, and to prevent its falling she let go the hand of the other child, which ran ahead and was injured by the approaching team. The street where the injury happened was a much used thoroughfare in a city, and the team was being driven at an unlawful rate of speed under the city ordinance. Held, that the question whether the mother was guilty of contributory negligence was for the jury and that their finding to the contrary would not be disturbed.

APPEAL from 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.

Stanly, Stoney & Hayes, for Appellants.

The evidence shows that the injury was proximately caused by the negligence of the mother in attempting to cross the street in front of the approaching team. That being the case, the fact that the team was being driven at an unlawful rate of speed does not render the defendants liable. (Belton v. Baxter, 54 N. Y. 246; 13 Am. Rep. 578; Rahn v. Singer Mfg. Co., 26 Fed. Rep 915; Jetter v. N. Y. & H. R. Co., 2 Keyes, 154; Deering on Negligence, sec. 30; Golz v. Winona etc. R. R. Co., 22 Minn. 55.)

F. M. Husted, and Walter Gallagher, for Respondent.

FOOTE, C.-Action for damages. The plaintiff alleged that his child, two years and five months old, had been run over, knocked down, and injured by the team of horses and wagon of the defendant, William Deeney, driven by Phillip Deeney, the servant and agent of William; that the team was being driven at an unlawful rate of speed, and in violation of a city ordinance. Judgment was had for the plaintiff, in the sum of five hundred dollars, from which, and an order denying a new trial, this appeal is taken.

The point is made here for the first time that the com

plaint does not state facts sufficient to constitute a cause of action, no demurrer having been filed.

We think that the complaint (after the verdict of the jury) does state a sufficient cause of action to sustain the judgment.

Further, it is said that the evidence of the child's mother, a witness for the plaintiff, shows that the injuries to the child were caused by the mother crossing the street when she saw the team coming up at a trot, and that she knew she would expose herself and children to the reception of injury; that her conduct, according to her own statement, put her in the position of one taking the chances of getting herself or children seriously hurt; and that this evidence is uncontroverted, and therefore the verdict of the jury cannot be upheld.

Upon an examination of the evidence, which the defendant claims shows the negligence of the mother was the proximate cause of the injury to the child, we find that the mother had in her arms an infant, and was leading by the hand another small child, and had just gotten onto the crossing of the street, when she saw coming upon the other side of the highway the wagon of the defendant, the horses drawing it on a trot. It does not appear that she attempted to cross in front of the team, but that she was getting into the street for the purpose of crossing at some time, perhaps after the team had passed. At that instant, absorbed in the care of her two little ones, she felt her infant slipping from her arms, and to save it a fall upon the stones beneath perhaps, she let go her hold upon the other child's hand, and it ran ahead and near the horses thus going at a trot, and was injured.

The team being driven at that place upon a crossing, in the midst of a city, and on a much used thoroughfare, at an unlawful rate of speed under a city ordinance (Siemers v. Eisen, 54 Cal. 420; Jessen v. Sweigert, 66 Cal. 182), it may well have happened that the jury thought that