Appeal from the County Court, Contra Costa County.

Forcible entry and detainer. The Justice rendered judgment for plaintiff. Defendant appealed to the County Court, filing with the Justice an instrument, in the following words, to wit: “Know all men by these presents, that we, John Zellers and José Silva, are held and firmly bound, unto John Canfield, in the penal sum of three hundred dollars, well and truly to be paid, firmly by these presents.

The condition of this undertaking is such that, whereas, John Canfield has recovered judgment against Philip Betz,-in an action of forcible entry and detainer, before E. F. Weld, Esq. Justice of the Peace, in and for Township) Mo. 1, Contra Costa County, on the 24th day of June, 1858, and the said Betz has taken an appeal to the County Court of Contra Costa County. Mow we, John Zellers and José Silva, agree and bind ourselves to pay all costs of such appeal, and abide the order the Court may make therein, and pay all rent, and other damages justly accruing during the pendency of such appeal; provided, the County Court affirms said judgment, or by the judgment of the County Court, said defendant is made liable to costs, rents, or damages.

John Zellers,

Jose Silva. [l. b.]

State of California,” County of Contra Costa, ss:

We, John Zellers and José Silva, sureties in the foregoing bond, being duly sworn, each for himself, depose and say : that he is a resident and householder in this county, and that he is worth the amount specified in the within bond, in property in this State, unincumbered and liable to execution, and not subject to the homestead law.

John Zellers, [r. s.] Jose Silva. [l. s.]

Sworn and subscribed to before me, this 24th day of June, 1858.

E. F. Weld, Justice of the Peace. Approved June 27th, 1858. E. F. Weld,

' Justice of the Peace.”

The defendant did not file an affidavit under the 16th Section of the Act of 1858, p. 90. Plaintiff served notice on defendant to have his sureties justify, which notice was disregarded. At the trial the counsel of plaintiff moved to dismiss the appeal, because of the insufficiency of the bond, assigning as reasons: 1st. That the bond had not a sufficient seal. 2d. That the sureties failed to justify after notice, excepting to them, had been served upon defendant. 3d. That no affidavit was made under the statute of 1858. The Court overruled the motion, and plaintiff excepted.

Plaintiff also, just before the trial, asked to amend his complaint, by inserting an unlawful detainer, no affidavit being offered. The Court refused leave, and plaintiff excepted.

The cause having been tried before the Court, judgment was rendered for defendant. Plaintiff appeals.