Appeal from the District Court of the Fourth Judicial District, County of San Francisco.

This is an action upon a check of the defendants, composing the firm of Sweetzer, Hutchings & Co., for $2500, dated on the 22d of September, 1857, and drawn upon Tallant & Wilde, bankers, at San Francisco, and payable to S. L. James, or bearer. It was admitted, on the trial, that the check was given by the defendant Hutchings, for losses at a public banking-game called “faro,” to one Wm. D. Chapman, and that there was no other consideration for it; that Chapman, on the same day, presented it for payment, which was refused. There was no evidence of the time it was transferred to the plaintiff, except what may be inferred from the presentation by Chapman, or that the plaintiff had any knowledge of its consideration.

On the trial, the defendant read the following stipulation in ■the case:

“ For the purposes of this action, we hereby admit that the defendants can prove that the check was given to Wm. D. Chapman for money lost in playing cards at a banking-game called" ‘ faro/ and that no other consideration was paid or passed between the drawer and said Chapman.

“In making said admission, the plaintiff is in no manner to be considered as admitting that the plaintiff had anything to do with the original contract with Chapman, or the defendants, but, on the contrary, expressly denies all knowledge of the same, and alleges that he is an innocent holder, without notice. But the defendants are not to be considered, and do not admit that the plaintiff had no notice of the real consideration, or that the plaintiff is a bona fide holder for valuable consideration.

“ G. F. & W. H. Sharp, Plaintiff’s Attorneys.”

The defendants also read in evidence the following notice in the case, served by them on the plaintiff’s attorneys:

“Please take notice, that the defendants will insist upon the plaintiff’s making proof of the manner in which he received the check in question, and the consideration, if any, that he paid for the same, or inform the defendants so they can make the same—■ [proof.] Tours, etc., Cook & Fenner, Attorneys for S. & H.

“Dated November 2, 1857.”

“ We admit service of a copy of the within notice, November 2, 1857. G. F. & W. H. Sharp.”

After judgment was rendered for the .defendants, the plaintiff moved for a new trial on his own affidavit and the affidavit of one of his attorneys. In his own affidavit he stated that he was an innocent purchaser, and the manner by which he came into the possession of the check, but did not give any excuse for omitting to make proof of the facts on the trial. The attorney, in his affidavit, stated that he supposed that the facts contained in the stipulation would not be admitted in evidence unless followed up by proof that the plaintiff took said check with notice; and that he was taken by surprise when the attorney of the defendants read on the trial authority for the notice of November 2, 1857.

The motion for a new trial was denied, and the plaintiff appealed from the order denying the motion, and also from the judgment.