it was so treated by the District Attorney who admitted service of a copy of it upon him. The judgment in the case simply imposed a fine, and the petitioner in entitled to be admitted to bail as a matter of right. (Penal Code, Section 1272.) Let him be admitted to bail in the sum of $1,000, the bail bond to be approved by the Judge of the Superior Court of Monterey County. We concur: Sharpstein, J., Thornton, J., Myrick, J. DEPARTMENT No. 1. [Filed January 14, 1881.] ADIN BULLARD, RESPONDENT, VS. HIS CREDITORS, APPELLANTS. INSOLVENCY PROCEEDINGS-MERE PREPONDERANCE OF TESTIMONY REQUIRED TO JUSTIFY VERDICT OF FRAUD. Where, on the trial of an issue of fraud in an insolvency proceeding, the Court instructed the jury so as to convey to them the idea that they were not authorized to find fraud upon a mere preponderance of testimony, but should require something stronger; and the verdict was against the alleged fraud: Held, that a mere preponderance is sufficient in all civil cases, as well to cases where fraud is imputed as to any other; and that the instruction was therefore erroneous. COSTS ON APPEAL-PUTTING REPORTER'S NOTES BODILY IN TRANSCRIPT. Where the creditors in an insolvency proceeding, on an appeal by them from a verdict acquitting the insolvent of fraud, made up their transcript at the great length of 1182 folios, consisting of the reporter's notes, questions and answers, remarks of Court and counsel, etc.: Held, that appellants, notwithstanding a reversal of the judgment, ought not to have costs on the appeal. Appeal from the Superior Court of Butte County. F. C. Lusk and A. P. Catlin, for respondent. MCKINSTRY, J., delivered the opinion of the Court: The seventeenth instruction, given to the jury at the request of counsel for plaintiff, reads as follows: "Each and all the charges made against the petitioner depends on the fact whether he has been guilty of fraud. "To sustain any or all of said charges you must find him guilty of fraud. "As to the evidence necessary to sustain a charge of fraud, the Court instructs you as follows: "The law abhors fraud, but it is unwilling to impute it on slight and trivial evidence, and thereby cast an unjust reproach upon the character of the party against whom it is alleged. Such an imputation is grave in its character, and can only be sustained on satisfactory proof. If the evidence is so conflicting that no conclusion can be reached, the charge is not sustained, upon the principle that the burden of proof is on the party who makes the charge, and if he does no more than to make an equilibrium, he fails to make out his case. Mere suspicion, leading to no certain result, is not sufficient. A right will not be divested upon mere conjecture or evidence, loose and undeterminate in its character. Fraud will never be imputed when the circumstances and facts on which it is predicated, consist with honesty and purity of intention. "The amount or weight of evidence that is sufficient proof of a fraudulent intent must be sufficient to satisfy the mind and conscience, and produce a satisfactory conviction or belief. The proof must be clear and satisfactory. It must be so strong and cogent as to satisfy a man of sound judgment of the truth of the allegations. There must be evidence of tangible facts, from which a legitimate inference of fraudulent intent may be drawn. Circumstances affording a strong presumption are sufficient, but the presumption must be drawn from pregnant facts, and not from far-fetched probabilities. Inferences are to be drawn from such facts, not singly, but as a whole. Fraud is never to be presumed, but must always be proved. As an allegation of fraud is against the presumption of honesty, it requires stronger proofs than if no such presumption existed; and in considering each charge of fraud made against the petitioner, you will apply to the evidence brought to sustain the charge the law as just given you; and if the evidence fails to meet its requirements, you must find the charges unsustained, and render a verdict of not guilty." The volume entitled " Bump on Fraudulent Conveyances" was opened and before counsel when the foregoing instruction was written. (2d Ed. 484.) But many remarks of the author, in the nature of limitations upon the language cited, are omitted from the instruction. The instruction was prepared by cautiously culling selected passages from Bump. These are sometimes given with slight changes of form, which, while not absolutely contradicting the sense, confer on the language color and weight not conferred by the original expressions; sometimes entirely disconnected from the context. Thus there was drawn up before the jurymen a formidable array of extreme phrases, unexplained; tending, if not calculated to mislead them. A comparison of the instruction as given with a quotation from the work referred to will help to indicate the probable difference in the effect produced upon the minds of the jury, by the reading of the one rather than the other. "How much evidence is required to raise a presumption of actual fraud cannot be determined according to any inflexible rule. "While the law abhors fraud, it is also unwilling to impute it on slight and trivial evidence and thereby cast an unjust reproach upon the character of the parties. Such an imputation is grave in its character and can only be sustained on satisfactory proof. If the evidence is so conflicting that no conclusion can be reached, the transaction must be sustained, upon the principle that the burden of proof is on the party who assails it, and if he does no more than create an equilibrium he fails to make out his case. Mere suspicion leading to no certain results is not sufficient. A legal title will not be divested upon mere conjectures or evidence loose and indeterminate in its character. Fraud will never be imputed when the circumstances and facts upon which it is predicated may consist with honesty and purity of intention. "It is not necessary, however, that the evidence tending to the conclusion of fraud should be incapable of being accounted for upon any other hypothesis. There is no rule of evidence or principle of law which requires that the circumstances must be of so conclusive a nature and tendency as to exclude every other hypothesis than the one sought to be established in order to authorize the inference of fraud from circumstantial evidence. "What amount or weight of evidence is sufficient proof of a fraudulent intent is not a matter of legal definition. If the evidence is admissible as conducing in any degree to the proof of the fact, the only legal test applicable to it upon such an issue is its sufficiency to satisfy the mind and conscience and produce a satisfactory conviction or belief. The proof, however, must be clear and satisfactory. It must be so strong and cogent as to satisfy a man of sound judgment of the truth of the allegation. It need not possess such a degree of force as to be irresistible, but there must be evidence of tangible facts from which a legitimate inference of a fraudulent intent may be drawn. Circumstances affording a strong presumption are sufficient, but the presumption must be drawn from pregnant facts, and not from far-fetched probabilities. Inferences are to be drawn from such facts not singly but as a whole. As an allegation of fraud is against the presumption of honesty, it requires stronger proof than if no such presumption existed. As it is against a presumption of fact, perhaps often a slight one, it requires somewhat more evidence than would suffice to prove the acknowledgment of an obligation or the delivery of a chattel. It is not necessary, however, that the fraud shall be proved beyond a reasonable doubt. Issues of facts in civil cases are determined by a preponderance of testimony, and the rule applies as well to cases in which fraud is imputed as to any other. If the evidence produces a rational belief, it cannot be discarded, although some doubt remains. If the evidence is of sufficient force to produce a preponderance of assent in favor of fraud it is sufficient. The payment of a full price does not purify a transaction, but is entitled to great weight when the proof of fraud is not clear." We are forced to the conviction that the instruction conveyed to the minds of the jurymen the idea that they were not authorized to find fraud, upon a preponderence of the evidence. Yet this is the rule in all civil cases. (C. C. P., Sec. 2061, sub. 5.) In Ford vs. Chambers, the Supreme Court said: "Issues of fact in civil cases are determined by a preponderance of testimony, and this rule applies as well to cases in which fraud is imputed as to any other." Sentences are found in the work of Mr. Bump immediately followed by others, which, perhaps, do not qualify those which precede them; but the last assist to explain the first, and are inserted to prevent the deduction of wrong inferences to which the first are liable. These are not always inserted in the instruction. Thus the sentences in Bump to the effect that there is no place in civil actions for the proposition, applicable to criminal proceedings-that the circumstances showing fraud must be of so conclusive a nature as to exclude every hypothesis except the guilt of the party charged-and which immediately succeed the statement "fraud will never be imputed when the circumstances on which it is predicated consist with honesty and purity of intention”—are omitted from the instruction as given. Other like instances appear upon a comparison of the instruction with the words of the learned writer. So, also, expressions are employed by Mr. Bump, which, although in a sense sustained by authority-inasmuch as they were used by a trial court in a particular case, and, on appeal, were held not to be fatally erroneous, in view of the circumstances-are yet objectionable when transferred to an instruction, without the accompanying illustration of the author, and are given in a case where perhaps different facts are involved. For example, the broad statement in the instruction: "As an allegation of fraud is against the presumption of honesty, it requires stronger proofs than if no such presumption existed. To this succeeds in Bump (but not in the instruction): "as it is against a presumption of fact, perhaps often a slight one, it requires somewhat more evidence than would suffice to prove the acknowledgment of an obligation, or the delivery of a chattel." The case referred to by Mr. Bump is Hatch vs. Bailey (12 Cushing, 27), in which the Judge of the Common Pleas charged the jury, with respect to an alleged fraudulent sale, that it was necessary for a defendant to adduce stronger proof to establish fraud than to prove a debt or sale. Mark how cautious the comments of Chief Justice Shaw. He says: "These were obviously general remarks, upon the nature of evidence in application to facts to be proved by it, and perhaps they are not stated with all the illustrations which accompanied them, or precisely as they were made.' As we understand them, the Judge intended to say, that he who alleges fraud against another is bound to prove it. That every man is presumed to act honestly until the contrary is proved; that he who charges another with an act involving moral turpitude or legal delinquency, must prove it; that as this is an allegation against a presumption of fact, it requires somewhat more evidence than if no such presumption existed. It carried no direction as to the amount of evidence required, or as to the nature of evidence, whether positive or circumstantial, but only that, on the whole, it must be somewhat stronger; and we cannot perceive that such a direction is incorrect. The ordinary direction to the jury is, that he who charges fraud must prove it to the satisfaction of the jury. We think it not contrary to any principle or rule of law for the judge to inform the jury, that as the charge of fraud is a charge against a presumption of fact, perhaps often a slight one, yet the jury, in order to be satisfied, might require somewhat stronger evidence than would suffice to prove the acknowledgment of an obligation, or the delivery of a chattel." (1 Greenl. Ev., Sec. 380.) These "obviously general remarks," perhaps, "not stated with the illustrations which accompanied them, or precisely as they were made," and by which the Judge "intended to say (only ?) that he who alleges fraud is bound to prove it,' and which "carried no direction as to the amount of evidence required," did not seem to have done harm, although |