Appeal from the Eleventh District.

Ejectment for mining claims, set out in the complaint as “ a certain tract or parcel of mining ground located on the middle fork of the American river, at the mouth of Mad Canon, township number six, Placer county, State aforesaid; described as follows, to wit: Lying on New York Bar, at the mouth of said Mad Canon aforesaid, fronting said American river, and bounded on the south by said river at low water mark, said claim being in front one hundred and twenty-feet, more or less; and on the easterly by a tract of mining claims known as the Carr claims; and on the westerly by a tract of mining claims known as the Hew York Bar claims and the Rich claims; and northerly by claims known as the Bank claims. Said claims of plaintiffs above described being one hundred and twenty feet in Avidtli, more or less, and extending back across Hbav York Bar in length three hundred feet, more or less, and further known as the Dutch claims.”

The complaint alleged ownership and possession in plaintiffs and their grantors since 1852, until the ouster by defendants, which is laid in October, 1859; and that defendants have Avrongfully extracted large amounts of gold from the premises entered upon, and appropriated it to their OAvn use, to the great damage, etc.

There is also a special averment that “ defendants, since the time last mentioned, have taken large quantities of gold dust from plaintiffs’ mining ground last described, te wit: gold dust of the value of three thousand dollars, as plaintiffs are informed and 'believe.'”

Defendants demurred, on the ground that the complaint does not state facts sufficient to constitute a cause of action; that it is ambiguous, unintelligible, and uncertain.

The substance of the answer is, that defendants are the owners of the Hew York claims, on the same bar with plaintiffs’ claims, known-as the “Dutch claims,” but that these latter do not and never did embrace the Hew York claims, excepting perhaps about twenty feet on the upper end thereof; that defendants have never been in possession of any of plaintiffs’ claims, and that they and their grantors have occupied their own claims for the last four years.

At the trial, one Taylor was called as a juror, and accepted. Subsequently, during the examination of another juror, the fact that there had been a former forcible entry and detainer suit for the same ground was elicited from him, whereupon Taylor stated that “ his mind Avas made up; that the title had been spoken of in the forcible entry case, and that Ms opinion was concluded on the title.” This statement of Taylor was of his own motion, and not in response to any question or suggestion from either party. Plaintiffs then challenged Taylor for cause, defendants resisting, on the ground that it was too late. Juror excused by the Court, defendants excepting.

Among the witnesses for plaintiffs was Paul Wagoner, who stated on his voir dire that he was an owner in the Dutch claims from the fall of 1858 to February, 1860, during the time the alleged damages accrued, and that at the latter date he sold to some of the plaintiffs. Defendants objected to witness, on the ground of interest and incompetency. Before the'question was passed upon, plaintiffs obtained leave to s.trike from their complaint their claim for damages, which they did by striking out the special averment on that subject, hereinbefore given. After this, plaintiffs did not claim damages, offered no testimony to that end, and the jury were charged to give none. Defendants still insisted on their objection to the witness, on the ground of interest. Overruled, defendants excepting. Verdict and judgment for plaintiffs.

Defendants appeal.