Opinion of the Court- Prim, J.

It is not necessary to have assent of creditors to the assignment. They are presumed to assent. It is not material whether or not the beneficiaries are apprised of the conveyances. (Bump on Frd. Conv. 339, 340, The assignment should not contain a provision for creditors to sign it, or to become parties to it. (Id. 340.) An exception in the deed, whereby a portion of the property of the insolvent is not conveyed, does not render the assignment void. (Carpenter v. Underwood, 19 N.Y, 520, 521.) The deed need not convey all the debtor's property. (21 N.Y. 25.)

Williams had a right to prefer creditors, though the preference would defeat all others. (Bump on Frd. Conv. 304; 11 Wheat. 78.) Assent of creditors to the assignment is presumed, and the refusal of a portion of creditors does not render deed void. (Bump, 342; 4 Mason, 217.) "It is not sufficient to invalidate an assignment that the debtor, at the time of making it, is embarrassed or executes it voluntarily or without the request or knowledge of the creditors. It is not necessary that the creditors shall be consulted or that the fact shall appear upon the face of the deed. The assignment may convey all the debtor's property. It need not convey at all." (Bump on Frd. Conv. 371.) The right to make an assignment is an incident to the ownship of property. (7 Pet. 614.)

Intent to hinder and delay creditors; what necessary. (Bump on Frd. Conv. 356; 4 B. Monroe, 430, 431.) Fraudulent intent; what is. (Id. 362.) The fraud must be in the beginning. (Id.) Fraudulent intent upon the part of the debtor alone is not sufficient. Either the assignee or creditors must participate in the fraud to render the conveyance void. (Bump on Frd. Conv. 363; Bonser v. Miller, 5 Og. 110.) The assignment is upon a valuable consideration. (Bump on Frd. Conv. 363, 364, 556; 4 Mason, 214.)

By the Court, PRIM, J.:

The only questions presented here for determination are: 1. Did Williams and Prindle collude and conspire together and cause the said conveyance to be made for the purpose

Opinion of the Court-Prim, J.

of defrauding Kruse and Moore, and to prevent them from collecting their debts? 2. Was the said conveyance made without consideration? The facts developed in this case show that both of these questions should be answered and determined in the negative..

The appellants having charged Williams and Prindle with collusion and conspiracy in procuring this conveyance to be made for the purpose of defrauding and preventing them from collecting their debts, the onus is upon them to prove it by legal and competent evidence. This they have failed to do. (Bump on Frd. Conv. 368.) These conveyances having been made and executed on the same day, and between the same parties, and relating to the same subjectmatter, should be treated and considered together as one instrument. (Cornell v. Todd, 2 Denio, 130.)

In this case the evidence not only fails to show collusion and conspiracy between Williams and Prindle with intent to delay or defraud the appellants, but on the contrary, it shows that Williams was an insolvent debtor, and that these conveyances were executed for the purpose of making an equal distribution of the proceeds of his property among his creditors. The fact that such creditors as were secured by mortgage were preferred in said assignment, did not vitiate and render the same void, as under the law a debtor has the right to prefer one creditor to another. (Bump on Frd. Conv. 344; 11 Wend. 241; 3 Paige, 537; 11 Wheaton, 556.)

A special defense is made in the answer of Prindle against the claim of Kruse, upon the ground that the assignor, Williams, was, in fact, surety in that case, and that the debt. was secured by a chattel mortgage, which Kruse had failed to enforce, by which he was released as such surety. In the recorded deed, the considerations recited are one dollar, and other valuable considerations, which have been fully shown in this case.

It was urged, on the argument of the case, that Williams had no interest in the property to assign after having executed the recorded deed. We regard that argument as extremely technical, and entitled to no weight, and especially

Argument for Appellants.

when we find that they were both executed at the same time. There being no evidence showing fraud in the execution or delivery of these deeds of assignment, either on the part of the assignor or assignee, they should be upheld and sustained by a court of equity.

The decree of the court below is affirmed.

GEORGE HOLSTINE, RESPONDENT, v. THE OREGON AND CALIFORNIA RAILROAD COMPANY, AP

PELLANT.

EVIDENCE-VALUE OF PROPERTY, PURCHASE PRICE NOT MATERIAL.-In an action to recover the value of horses killed by a railroad, the plaintiff, testifying as to the value of the horses, stated on cross-examination that he bought and paid for them in sheep at a stated price. The defendant then asked where he got the sheep, how much he paid for them, and whether they had been sheared: Held, that such questions were irrelevant. SLIGHT NEGLIGENCE will not prevent a recovery, if the negligence complained of has been gross.

APPEAL from Clackamas County. The facts are stated in the opinion.

Dolph, Bronaugh, Dolph & Simon, for appellants:

The court erred in instructing the jury as follows: "If the company was guilty of gross negligence, and the plaintiff was guilty of slight negligence, or if the agents of the company were willfully or intentionally negligent, then the plaintiff is entitled to recover, notwithstanding his own negligence."

The rule upon this subject is thus stated in Sherman & Redfield on Negligence: "It has been held, in some cases, that the plaintiff's slight or ordinary negligence is no defense where the defendant has been guilty of gross negligence. But this exception to the rule was in part founded. upon the idea that gross negligence was equivalent to frand or malice, which we have already shown to be contrary to both principle and authority. And it is now generally held in the most important courts of America, that the degree of the defendant's negligence is immaterial in determining questions of contributing negligence."

Argument for Appellants.

It is contended that this court, in Bequet v. The People's Trans. Co. (2 Or. 200), adopted a different rule. We are free to confess that we think the decision in that case erroneous; and if a distinction does not exist between "the least negligence," which is the language used in the instruction asked, and in the opinion of the court in that case-and "slight negligence," which is the term used by the court in the instruction given in the case at bar-we ask the court to adopt the rule upon this subject which prevails in all but two of the states of the Union, notwithstanding the case of Bequet v. The People's Trans. Co. In fact, this court has already, as it appears to us in the subsequent cases of Stone v. The Oregon City Manufacturing Co., 4 Or. 52, and Cogswell v. The Railroad Co., 6 Id. 417, followed the rule as above quoted from Sherman and Redfield.

The court erred in refusing to instruct the jury, as requested by the defendant, that certain facts, if found by the jury from the testimony to exist, constituted negligence which would preclude the plaintiff from recovering. The general rule on this subject is briefly stated thus in Sherman and Redfield upon Negligence (sec. 1.): "The question whether a party has been negligent in a particular case is one of mingled law and fact. It involves, indeed, two questions (1) Whether a particular act has been performed or omitted; and (2) Whether the performance or omission of this act was a breach of legal duty. The first of these is a pure question of fact, the second a pure question of law."

Of course to this rule, as to all general rules, some modification exists; but we insist that in this case it was the duty of the court to determine whether if the facts stated in the instruction asked were found to exist, they constituted negligence; and if a jury whose sympathies are all with the plaintiff, are told that if the plaintiff is guilty of slight negligence and the defendant of gross negligence, the plaintiff can still recover; and are then told that they may find not only whether the facts exist which it is claimed constitute negligence, but also whether the facts, if found, do constitute negligence, parties might as well try their cases without the assistance of the court. In the following cases the

Argument for Respondent.

court instructed the jury that if certain facts were found by them to exist, such facts would constitute negligence, or the refusal to so instruct was held to be error. (Finlayson v. Railroad Co., 1 Dillon, 584; Stone v. The Oregon City Mfg., Co., 4 Or. 53; Illinois Central R. R. Co. v. Buckner, 28 Ill. 299; Artz v. The Chicago and P. R. R. Co., 34 Iowa, 153; Wilcox v. Railroad Co., 39 N. Y. 358.) And in the following cases, the facts being clear or undisputed, which it was claimed constituted negligence on the part of the plaintiff, and which in the opinion of the court, as matter of law, precluded a recovery, the court granted a nonsuit: Cogswell v. O. & C. R. R. Co., 6 Or. 419; McGlynn v. Brodie, 31 Cal, 376; Wilds v. The H. R. R. Co., 29 N. Y. 315; Gonzales v. N. Y. & Harlem R. R. Co., 38 Id. 432; Deyo v. N. Y. Central R. R. Co., 34 Id. 9.

R. Williams, for respondent:

The instruction given by the court was correct. If the company was guilty of gross negligence, or if the agents of the company were willfully or intentionally negligent, the plaintiff would be entitled to recover, notwithstanding he was guilty of slight negligence. (Bequet v. P. T. Co., 2 Or. 200; The Peoria, etc. R. R. Co. v. Champ, 75 Ill. 577.) But this was not the entire charge of the court upon this subject, as a reference to the charge will show.

The instruction asked by defendants' counsel was properly rejected. It required the court to say to the jury, not that the circumstances mentioned (which was only a portion of the evidence bearing upon the point presented) in the charge asked might be considered by the jury, in determining whether the plaintiff was guilty of contributory negligence, but that these circumstances conclusively proved negligence on the part on the plaintiff, which contributed to the injury to such an extent as to prevent his recovery. This is in direct violation of sections 198 and 835 of the code of civil procedure. It was proper for the court to refuse to give the instruction as asked, and to qualify or explain the same before giving it to the jury. (Knapp, Burrell & Co. v. Sol King, 6 Or. 243.