Appeal from the Fourteenth District, County of Sierra.

The facts, as disclosed by the opinion of the Court, are as follows : This was an action of trespass, in which the plaintiff complains that in April, 1857, he owned and possessed a third part of a tract of mining ground, and that defendants broke into and trespassed upon it, and dug up and converted the dirt and gold-bearing earth to the value of $2,000.

The defendants answered, denying that the claim was the property of the plaintiff, or that they committed any trespass on the property of the plaintiff, and generally denying all the allegations of the complaint. And further say that “ George Davis, one of the defendants herein, is Deputy Sheriff in and for the County of Sierra ; that by authority of his said office, and by virtue of an attachment issued from the District Court of the Fourteenth Judicial District in and for Sierra county, in an action before said Court, in which J. W. Bradley was plaintiff, and F. M. Rowe defendant, he levied upon or attached the said F. M. Rowe’s interest in the mining claim described in plaintiff’s complaint in this action; that thereupon the plaintiff in this case claimed the property as his own, and the said Sheriff, in conformity with the statutes in such cases made and provided, proceeded to try and determine the rights of property; that the jury called to determine said matter decided in favor of said plaintiff, J. W. Bradley, as will more fully appear by reference to the proceedings then and there had, which defendants pray may be made a part hereof.

“ And that, afterwards, by virtue of a judgment and execution issued from said Court, and to him directed, and by virtue of said decision of said jury, and of the statutes in such cases made and provided, satisfied the claim of said J. W. Bradley out of the said F. M. Rowe’s interest as aforesaid, as the proceedings in said case on record will more fully show; which record, return and proceedings, defendants introduce and make a part of this answer.” The answer was sworn to by Davis. Afterwards, defendants amended their answer to this effect: “ That they have been informed that plaintiff claims to have purchased the mining claim mentioned in his complaint from one J ames Finney; but defendants aver that, if such conveyance was made, it was in fraud of the rights of defendant, J. W. Bradley, and made for the purpose of delaying and hindering him from collecting a debt due from F. M. Rowe to him, which debt was the same sued for in the case of J. W. Bradley v. F. M. Rowe in this Court, the record of which suit is made a part hereof; and that said purchase was made by F. M. Rowe, defendant in the last mentioned suit, and the money therefor furnished by him, and the name of A. C. Rowe used in said conveyance from Finney to deceive and defraud said defendant, J. W. Bradley.” This was sworn to by Bradley.

One Finney, the vendor of the claim to Rowe, to whom was due a part of the purchase money, was examined as a witness. It is assigned as .error, that he was admitted to testify when he was incompetent. The question before the jury was not as to the original title as it stood before the witness sold, but as to whether the claim belonged to plaintiff, F. M. Rowe, as whose property it was levied on by the officer.

The cause was tried by a jury, and a verdict had for plaintiff for $2,000, on which verdict there was judgment, from which the defendants appealed to this Court.