Appeal from the Twelfth District.

On the sixteenth of May, 1859, Samuel - West, the defendant, made a mortgage to one Leon R. Meyers for five hundred dollars, payable in six months. On the sixteenth of December, 1859, Meyers assigned the mortgage, then past due and reduced by payments to three hundred and thirty-five dollars, to the appellant Shells, who brought this suit to foreclose the same. As a defense to the mortgage, West set up in his answer, by way of counterclaim, a demand against Meyers and in favor of one Philip W. Sterling, and assigned by Sterling to West on the fifteenth of November, 1859, before the maturity of the mortgage. Said demand is pleaded and set out in the answer as follows, in the shape of an account, thus :

San Francisco, November 15th, 1859.

Leon R. Meyers to Philip W. Sterling, Dr.

To cash, lent the 30th day of June, 1859.............$135 00

To balance of cash, lent since the 30th day of June, 1859 169 89

The case was sent to a referee who reported, among other things, that the above account was assigned by Sterling to defendant, on the fifteenth of November, 1859 ; that on the twenty-third of October, 1859, Meyers rendered an account of his dealings with Sterling, which admitted a balance due Sterling at that date of thirty-four dollars, which is still unpaid ; that in this account Sterling is charged by Meyers with cash one hundred and thirty-five dollars, which item defendant claims should have been credited and not charged to Sterling, and that this is the real point of dispute.

Defendant introduced before the referee an account book kept, by Meyers, called a blotter, and proved by one Gill that it was in Meyers’ handwriting. Upon this book appear the following entries:

1859. June 30. Cash to P. W. Sterling.

Balance on old account up to 20th inst... .$69 00

1859. June 30. P. W. Sterling, Or.

By cash..........................$135 00

Gill testified that about the middle of October, 1859, Meyers altered this last entry, by crossing with ink the word “ By,” and making it read “ To,” and changing the word “ Cr.” and making it read “ Dr. ” ; and that this alteration was made without the knowledge or consent of Sterling.

The referee upon this evidence concluded thus: “ I think in the

absence of all other evidence explaining the original entry and the alteration, that I must presume that at the time it was made the entry was according to the fact. 1. Because it -was made at the time of the transaction. 2. Because it was against the interest of Meyers to make such entry, and it was in accordance with his interest to make the alteration.

The referee accordingly held, that on the fifteenth of November, 1859, the date of Sterling’s assignment to defendant, Meyers was indebted to Sterling in the balance of thirty-four dollars, as per Meyers’ account rendered, and also in the sum of one hundred and thirty-five dollars, cash, on the thirtieth of June, 1859, making the account stand: two hundred and seventy dollars with thirty-four dollars added—three hundred and four dollars; Jand leaving a balance due plaintiff, after deducting the three hundred and four dollars from the three hundred and thirty-five dollars due on the mortgage, of thirty-one dollars—for which sum with interest, plaintiff had judgment.

The plaintiff was required to pay the referee fee, on the ground that costs were in the discretion of the Court.

The Court below refused to set aside the report, and plaintiff appeals.