Appeal from the District Court of the Fifth Judicial District, County of Tuolumne.

This was an action for damages, caused by the defendants’ ditch breaking and overflowing the ditch of plaintiffs.

The complaint is as follows :

“District Court, Fifth Judicial District—The Tuolumne Gounty Water Company v. The Columbia and Stanislaus F. Water Company—Tuolumne County: ss.—The Tuolumne County River Water Company, plaintiffs, by Henry P. Barber, their attorney, complain of the Columbia and Stanislaus River Water Company, defendants, both plaintiffs and defendants being corporations formed for the supply of water ■ for mining purposes, under the laws of this State: That said plaintiffs heretofore, to wit, on the sixth day of May, a. d. 1857, at the county of Tuolumne, were the owners and proprietors of a certain valuable water-ditch or canal, for the purpose of conveying water; at which time and place said defendants were also the owners and proprietors of a certain other water-ditch and canal for the purpose aforesaid; and said plaintiffs aver that afterwards, to wit, on the same day and year at etc., aforesaid, the said defendants’ ditch was so badly and negligently constructed and managed, and the water therein so negligently and carelessly attended to, that the said ditch broke and gave way, and the water flowing therein, by reason thereof, flowed into, over, and upon the ditch of said plaintiffs, greatly damaging and injuring the same, and carrying down therein and thereon great quantities of rock, stones, earth, and rubbish, and breaking said plaintiffs’ ditch, and depriving them of the use, profit, and benefits of the water flowing therein, to said plaintiffs’ damages of three thousand dollars, and thereof they bring suit.”

The answer of defendants was a general denial.

On the trial, Thomas P. Morrissey, a witness for the plaintiff, being sworn on his voir dire, testified as follows:

“I was ditch-tender for plaintiffs, and a member of the corporation at the time of the breaking of defendants’ ditch in May last. I sold out on or about the tenth of June, and before the commencement of this suit, to a former partner who is a stockholder, for three thousand dollars—three shares. I think I have his notes at my cabin. They will become due the last of this month. I have no other security. I have no interest in the event of this suit.”

Defendants’ counsel objected to the witness, on the ground of interest. The Court overruled the same, and defendants then and there excepted.

The trial was had before a jury, who returned a verdict for the plaintiffs for the sum of $1,550, and judgment was duly entered thereon. Defendants moved for a new trial, which was denied by the Court, and defendants appealed.