Appear from the District Court of the Fifth Judicial District, County of San Joaquin.

This was an action against the defendant Webster, as sheriff, of San Joaquin county, to recover damages for an alleged unlawful seizure of certain personal property, which the plaintiff claimed by purchase from one Hiram Dennis. The sheriff justified the taking by setting forth that the property attached belonged to Dennis, and that the sale to plaintiff was fraudulent and void, and that A. FT. Fisher & Co., as the creditors of Dennis, had placed in his hands attachment process, by virtue of which he had levied upon the property. On the trial of the cause, defendant introduced in evidence a copy of the record in the attachment suit, and a note, as the basis of said' suit, which read as follows:

$708 17. Stockton, January 22,1855.

One day after date, we, jointly and severally, promise to pay Messrs. A. FT. Fisher & Co., or order, the sum of seven hundred and eight 17-100 dollars, for value received, with interest monthly at the rate of five per centum per month, until final payment.

Benjamin G. Weir, Hiram Dennis.

The evidence showed that the note was delivered by the makers thereof, with the rate of interest in blank, and that while in the possession of the holders, the blank had been filled by the insertion of the word “five.” Hiram Dennis having been called as a witness for plaintiff; on his cross-examination, counsel for defence asked him the following question, to which plaintiff objected, and the Court sustained the objection, under the exception of defendant:

“ Did you not, about the latter part of February or March, 1855, state to Robert Weir that you had fixed your property so that your creditors could not get it ?”

Defendant then called Robert Weir, and asked him if he had not had a conversation with Hiram Dennis, in which Dennis had stated that he had fixed his property so that his creditors could not get it ? The Court refused to permit the witness to answer, and defendant excepted.

The Court, among others, gave the following instructions to the jury, under the exception of defendant’s counsel:

“ If the jury believe, from the evidence, that the note on which said judgment was obtained bore no rate of interest at the time it was signed by Dennis, and delivered to the holders, but that it was afterwards filled up with the word ‘five,’ so as to make it draw interest at five per cent, per month, and that such alteration was made without the knowledge or consent of Dennis, that said alteration vitiated the note, and rendered it incompetent evidence, to show that Fisher & Co. were creditors of Dennis.”

Judgment for plaintiff. Defendant appealed.