tion, if it was voidable; for, by the same section of the Code, "any absent or other stockholder" is authorized to institute such a proceeding. Therefore, as a stockholder of the corporation, the petitioner had legal capacity to institute the proceeding commenced on the twenty-ninth of September, 1881. It is urged, however, that even if the petitioner had the capacity to sue, the proceeding was improperly commenced in the superior court, because section 312 of the Civil Code, upon which the proceeding is founded, only authorized the filing of a petition in the district court to set aside a voidable election; and as, at the time of the commencement of the proceeding, there was no district court, and no law which authorized the filing of such a petition in the superior court, the proceeding was improperly commenced in the superior court. The constitution of 1879 abolished the district court, but at the same time it created the superior court, and conferred upon it the same equity jurisdiction which had been formerly conferred upon and was exercised by the district court. Sitting as a court of equity, therefore, the superior court had jurisdiction to inquire into the validity of an election and to set it aside, if it had not been made in conformity to law, whether the statute conferred it or not. Brown v. Pacific M. S. Co., 5 Blatchf. 525; Walker v. Devereaux, 4 Paige, 225; Webb v. Ridgely, 38 Md. 364. The abolition of the district court did not destroy or affect the right to invalidate a voidable election. The remedy still existed in favor of any one aggrieved, and was enforceable by him in any court of competent jurisdiction of the subject-matter. It is next claimed that the election was valid, and that the court erred in holding it to be invalid. According to the finding of the court, the election was called "pursuant to a notice which was, in all respects, published according to law;" and at the proper time and place for holding the election, a majority of stockholders of the subscribed capital stock of the corporation met and organized and proceeded to elect seven directors. The records of the election show: "After some discussion, the following motion was made and seconded: That the stockholders of the Central California Colony Water Company proceed to the election of officers of the said Central California Colony Water Company in the manner provided in the constitution of said company. Carried, 62 to 10." And the court finds that the manner of conducting the election was this: "That, prior to taking any vote in said election, the majority of said stockholders adopted a resolution to the following effect: That seven (7) ballots should be taken for directors; that each stockholder should vote on each of said ballots for one person, and no more; and that the person receiving the majority of the votes cast on each ballot should be declared elected director for the ensuing year." In this way seven separate ballots were taken in succession, and on each ballot the candidate receiving the highest number of the votes cast was declared a director, until seven directors were chosen. A large number of stockholders present, including the petitioner, protested against the adoption of the resolution and the manner of conducting the election, and the court finds, as fact, that they "demanded to be allowed to cumulate their respective votes on one or more persons for directors, but that they were not permitted so to do, and were prevented from so doing by said resolution;" and, as law, "that the election was not had in accordance with the provisions of article 2 of chapter 1 of part 4 of the Civil Code of the state of California, and that said election was and is illegal and void." The decision is predicated upon the fact that the petitioner and others, as qualified voters at the election, had the right, under the charter of the corporation, to cumulate their votes upon any one candidate, or distribute them upon two or more candidates; and that they were deprived of this right by the adoption of the resolution and by the manner of conducting the election. Section 12, art. 12, Const. 1879, reads thus: "In all elections for directors or managers of corporations, every stockholder shall have the right to vote, in person or by proxy, the number of shares of stock owned by him for as many persons as there are directors or managers to be elected, or to cumulate said shares and give one candidate as many votes as the number of directors multiplied by the number of his shares of stock shall equal, or to distribute them, on the same principle, among as many candidates as he shall think fit; and such directors or managers shall not be elected in any other manner, except that members of co-operative societies, formed for agricultural, mercantile, and manufacturing purposes may vote on all questions affecting such societies in manner prescribed by law." This section is understood to confer upon the individual stockholder entitled to vote at an election the right to cast all the votes which his stock represents, multiplied by the number of directors to be elected, for a single candidate, should he think proper to do so. So that the petitioner, as the representative of a single share of stock, if qualified under the charter of the company to vote, was entitled to cast seven votes for any one of the candidates for the office of director, or to distribute them among any two or more candidates. In that way a minority of the stockholders would be enabled to secure representation upon the board of directors by electing one or more of the directors. Such, doubtless, was the object of the provision; and the rule was considered of sufficient importance as to make it part of the organic law. Under this rule, a corporation holding an election for directors is bound to follow the constitutional mode. It has no power, by resolution or otherwise, to adopt any other. And when an election for directors has been properly called, each qualified stockholder present has the same right, in exercising his power of voting for directors, to vote at one time the number of shares in his name for the whole number of directors to be elected, or to cumulate his shares by voting for one candidate for director as many votes as shall equal the number of his shares multiplied by the number of directors to be elected, or by distributing them, upon the same principle, among as many candidates for directors as he shall think fit. We think the power thus conferred upon a corporate elector can only be exercised according to the constitutional provision by allowing him to cast his ballot singly, cumulatively, or distributively, at one time, for the election of directors. For if but one director at a time be balloted for, a majority of the stockholders could, by combining, cumulate their votes each time upon a single candidate and elect him; and by thus shaping and controlling the manner of the election, it would be in the power of the majority of the stockholders to virtually cancel the votes. of the minority and deprive them of their rights to representation on the board of directors. Judgment and order affirmed. LEWIN v. HOPPING. (No. 9,911.)1 PERSONAL PROPERTY-TRANSFER OF-FRAUD ON CREDITORS. A transfer of personal property, accompanied by an actual, immediate, and continued change of possession, is not fraudulent as to creditors because made in consideration of a promise by the transferee to use the property in a certain manner, which would confer pecuniary profit on the transferrer. Commissioners' decision. Department 2. Appeal from superior court, Shasta county. Edw. Sweeny and Chipman & Garter, for respondent. FOOTE, C. Action of claim and delivery. The plaintiff obtained judgment for the return of a certain wire rope, or its value, which had been seized in attachment by the defendant, as sheriff of Shasta county, at the suit of Chappel and Houston against one Joseph Waugh. It appears that the plaintiff, being requested by a large number of citizens of the county, had raised money by subscription from divers individuals to complete a road to a certain point on the Sacramento river; that, as an incident to that object, and as a part of the scheme, it was found advantageous to establish a ferry across said river at a place where a railroad could be reached, and this was where one Waugh kept a hotel. He possessed a certain wire rope, suitable for such a purpose, and Lewin visited him and proposed to obtain it from him (on his own behalf and that of these public-spirited citizens) as an aid to accomplish the end in view. Waugh, for the consideration that his hotel would thereby receive increased patronage from the traveling public and himself derive pecuniary benefit, and that a boat would be built by Lewin and those he represented, so that a ferry would be established, agreed to let the rope be used as desired. by Lewin, and to make a permanent transfer of it for that express purpose. This he at once did, giving a written order therefor to 1 See note at end of case. Lewin, who took possession and control of and removed it to a warehouse, and left it thee subject to his disposition. It remained in this situation for nearly a month before it was seized in attachment. Some days after this transfer, but before the attachment levy, the board of supervisors of Shasta county subscribed $300 towards aiding in the establishment of the ferry as a free and public one, and made an order, upon a petition of certain citizens asking that such a one be established at that point, that the franchise should be granted as prayed for; but, for the convenience of having some individual to take out a license, they gave it to Waugh, although he had not petitioned therefor. Lewin had possession all this time of the rope, and was proceeding to get the ferry ready for use when the attachment was levied on the property in dispute, and although he claimed it as his own, it was taken, and is still withheld from him. And he instituted this action to recover it. It is urged by the appellant that Lewin had no title or right of possession to the property, that it was a gift from Waugh to unknown persons, and in fraud of the rights of creditors. The intention of the parties to this transaction, as gathered from the evidence, was to establish a ferry at a given point, from which mutual benefit would flow to them. Lewin was one of a number of persons who, although their names are undisclosed, it would seem. could easily be identified, who, upon their part, had agreed to use their money in building a boat, and preparing the other things necessary to carry on the ferry as a free and public one. This agreement being communicated to Waugh, he, because of the promise on their part to fulfill it, and because he expected to realize pecuniary profit therefrom, transferred to the possession and control of Lewin, for the purpose specified, the custody, control of, and property in the rope. To his title and right of possession no condition, mutual or precedent, was expressly attachéd, but actual, immediate, and continued change of possession was given him of the property, and such possession was maintained up to the time of the levy of the attachment, a period of nearly a month. According to the testimony of Lewin, which is undisputed, he, for himself and those acting with him, was proceeding with "the erection of the ferry" at the time the defendant made the seizure in attachment. It would seem, therefore, as if between Waugh and the plaintiff and those acting with him, the conditions of the transfer were being complied with, that the consideration for it was sufficient, and that there was no fraud or attempt to hinder or delay creditors shown by the record; and that Waugh had parted with his title and right of possession to the property in good faith, and in such manner as to bar him from bringing an action of claim and delivery against the plaintiff. The findings are sufficient, and are supported by the evidence. There is no error shown by the record, and the judgment and order should be affirmed. We concur: BY THE COURT. SEARLS, C.; BELCHER, C. C. For the reasons given in the foregoing opinion the judgment and order are affirmed. NOTE. Fraudulent Transfer. 1. FRAUD. The statute of 13 Eliz. c. 5, which was made perpetual by 29 Eliz. c. 5, is the law which furnishes the basis of all remedies for fraudulent conveyances, (Bump, Fraud. Conv. 58,) and all our statutes on the subject are merely declaratory of the common law, or the statute of 13 Eliz. Farr v. Sims, Rich. Eq. Cas. (S. C.) 122; S. C. 24 Amer. Dec. 396 A fraud which will vitiate a sale must be mutual; that is, must be intended by both parties, or by one with a knowledge of such purpose on the part of the other, and thus acquiesced in and furthered. Horbach v. Hill, 5 Sup. Ct. Rep. 81; Mehlhop v. Pettibone, 11 N. W. Rep. 553. It has been held that, to make a conveyance fraudulent, the fraudulent intent must be shown to have been shared by the grantor and grantee alike. Splawn v. Martin. 17 Ark. 146; Partelo v. Harris, 26 Conn. 480; Ewing v. Runkle, 20 Ill. 448; Meixsell v. Williamson, 35 Ill. 529; Hessing v. McCloskey, 37 Ill. 341, Fifield v. Gaston, 12 Iowa, 218; Steele v. Ward, 25 Iowa, 535; Violett v. Violett, 2 Dana, (Ky.) 323; Brown v. Foree, 7 B. Mon. 357; Brown v. Smith, Id. 361; Harrison v. Phillips Academy, 12 Mass. 456; Bridge v. Eggleston, 14 Mass. 245-250; Foster v. Hall, 12 Pick. 89; Kittredge v. Sumner, 11 Pick. 50; Byrne v. Becker, 42 Mo.-264; Bancroft v. Blizzard, 13 Ohio 30; Union Bank v. Toomer, 2 Hill, (S. C.) Ch. 27; Weisiger v. Chisholm, 28 Tex. 780; Leach v. Francis, 41 Vt. 670; Governor v. Campbell, 17 Ala. 566; Magniac v. Thompson, Baldw. 344. Yet it has been held by our courts that a conveyance made to hinder, delay, or defraud creditors is void as to them, although founded on a full and valuable consideration, (Bozman v. Draughan, 3 Stew. Ala. 243; Rogers v. Evans, 3 Ind. 574; Ruffing v. Tilton, 12 Ind. 259, 264; Musselman v. Kent, 33 Ind. 452, 458; Lowry v. Howard, 35 Ind. 170; Poague v. Boyce, 6 J. J. Marsh. Ky. 70; Reed v. Carl, 11 Miss. [3 Smedes & M.] 74; Trotter v. Watson, 6 Humph. Tenu. 509; Peck v. Land, 2 Ga. 1; Chandler v. Von Roeder, 24 How. 224; Walcott v. Brander, 10 Tex. 419; Mills v. Howeth, 19 Tex. 257;) and that a deed fraudulent on the part of the grantor may be set aside, though the purchaser be a bona fide purchaser for value and ignorant of the fraud. Hildreth v. Sands, 2 Johns. Ch. 35; Gamble v. Johnson, 9 Mo. 605; Miller v. Tollison, 1 Harp. (S. C) Eq. 145; Lee v. Figg, 37 Cal. 328. But this cannot be regarded either as the better doctrine or the prevailing law of the land. Where a vendee participates in the fraud of the vendor to delay, hinder, or defraud the creditors of such vendor, even though a full consideration has been paid for the property, the conveyance will be set aside. Gardinier v. Otis, 13 Wis. 460; Briscoe v. Clarke, 1 Rand. 213; Tootle v. Dunn, 6 Neb. 93. This is a well-recognized principle of law, and courts have held that the purchaser is to be charged with notice of the character of the transaction when he is acquainted with the circumstances sufficiently to convince a court or jury that he knew the facts, (Green v. Tantum, 19 N. J. Eq. 105;) or, if he has a knowledge of such facts as would excite the suspicions of an ordinarily prudent man, and fails to make inquiry, and purchases from a fraudulent vendor, he is not a bona fide purchaser, or a purchaser in good faith, and will be charged with notice of any fraud upon creditors effected by the sale and transfer. State v. Estel, 6 Mo. App. 6. The transfer, though fraudulent, cannot be complained of by a creditor who has not been injured thereby. Barnett v. Knight, 3 Pac. Rep. 747. And, in an action to set aside a fraudulent conveyance, the petition must set out and the proof show that the grantor had not sufficient property subject to the payment of his debts left for that purpose. Sherman v. Hogland, 54 Ind. 578; Zimmerman v. Fitch, 28 La. Ann. 454; Wiley v. Bradley, 67 Ind. 560. Equity will not set aside a deed which complainant made to hinder, delay, and defraud creditors. Wier v. Day, 10 N. W. Rep. 304. (1) Definition. In this connection fraud is unlawful conduct operating prejudicially to creditors' rights, (Bunn v. Ahl, 29 Pa. St. 387,) and consists in withdrawing from another that which is justly due him, or depriving him of his rights by deception and artifice. Burdick v. Post, 12 Barb. 168; S. C. 6 N. Y. 522. A fraud upon creditors is any act which, by intention, withdraws the property of the debtor from their reach. McKibbin v. Martin, 64 Pa. St. 352; Alabama Ins. Co. v. Pettway, 24 Ala. 544. (2) Evidence. The question of fraud is one of fact, to be determined from all the facts and circumstances bearing upon the good faith of the transaction, (Knowlton v. Mish, 17 Fed. Rep. 198; Morse v. Riblet, 22 Fed. Rep. 501; Hills v. Stockwell & Darragh |