Appeal from the Superior Court of the City of San Francisco.

This was an action brought by C. Hopkins against E. L. Beard to recover the sum of $91,467 23, alleged to have been paid by the plaintiff on a note for $63,870, with interest at four per cent, per month, executed by plaintiff and defendant jointly, and secured by a mortgage on joint property, to C. K. Garrison, but for the individual debt of the defendant, and finally paid, on foreclosure, by plaintiff.

The issues tried are mostly of fact, and unnecessary to the report of the case.

There were put in proof by the plaintiff two instruments executed between the parties to this action. The first is a deed of settlement, executed June 1, 1854, in which the defendant admits that he is indebted to the plaintiff in the sum of $30,000, exclusive of the Garrison debt, which is admitted to be the individual debt of the defendant. The second is a deed from the defendant to the plaintiff, executed at a later hour on the same day, of a portion of the mortgaged premises so jointly owned by them, recognizing the indebtedness of $30,000 recited in the deed of settlement, and providing that nothing in the latter deed contained should be construed against the acknowledgment of that indebtedness.

On the trial, the defendant offered to show that the deed of settlement was procured by fraud, and as a predicate, offered in evidence the account on which the settlement was based, which was excluded by the * Court, on the ground that the deed of settlement was conclusive) to which defendant excepted.

There was an attempt on trial to connect the two deeds as one transaction, although executed at different times on the same day, and the defendant asked the Court to instruct the jury that the exception of the Garrison debt in the deed of settlement had no tendency to show that such debt was not the consideration of the conveyance by Beard to Hopkins, which was refused by the Court, under the exception of defendant. The jury found a verdict for plaintiff for $151,462. Motion for new trial made and overruled, and judgment entered on the verdict. Defendant appealed.