Appeal from the County Court of the City and County of San Francisco.

This was an action of assumpsit, originally commenced in a Justice’s Court.

The facts are as follows:

On the fourth of May, 1857, the defendant, Harris, being indebted to Tandler & Co., executed to them a certain instrument, which, after giving a schedule of goods, reads as follows :

“ The above mentioned goods, amounting to 11,912.96, I have delivered into the possession of Messrs. Tandler & Co., to be sold at public auction, and the proceeds thereof to be applied in payment of their claim against me, and any surplus over the amount of their claim to be distributed pro rata to my other creditors.

“ In witness whereof I have hereunto put my hand and seal.

“ San Francisco, May 4th, 1857.

The goods were delivered to Tandler & Co. under this instrument, who sold them at public auction, and, on the eleventh of May, 1857, after deducting the amount due them, paid over to Harris two hundred and fifty-five dollars and sixty-seven cents, the balance of the proceeds of the sales. An hour or two after the payment of the money to Harris, an order was served upon Tandler & Co. to attend and undergo an examination before a Justice of the Peace, upon proceedings supplementary to execution, concerning property, money, etc., in their hands, belonging or owing to Harris. This order was issued in the present case, which was then pending before said Justice, The Justice ordered Tandler & Co. to pay to plaintiff, Morgentham, the sum of two hundred and six dollars and fifteen cents, the amount of the judgment against Harris. The case was taken to the County Court, but how it got there the record does not disclose. The cause was. tried in the County Court without a jury, and judgment rendered for Tandler & Co., reversing the order of the Justice. Plaintiff Morgentham appealed to this Court.