Appeal from the Eleventh Judicial District.

Plaintiff, on the twenty-second day of April, 1858, was the holder of a note against defendant Bowers for $4,000, secured by a mortgage on a mining claim owned by same defendant. Bowers on that day contracted to sell the claim to defendant Benedict, and the two .executed the agreement set forth in the findings of fact. This action on the original note was commenced April 29th, 1858&emdash;the |1600 mentioned in the agreement not having been paid, and the two thousand dollar note not then being due. In January, 1861, and a few days before the last trial, one Williams having obtained a judgment against plaintiff, levied upon and sold at Sheriff’s sale, (so far as could be done' without the note being taken into possession by the Sheriff) as the property of plaintiff, the two thousand dollar note, executed by Benedict to him, of which Williams became the purchaser, and on a motion for a new trial these. facts were presented in an affidavit, as constituting a new ground of defense to this action, which defendant asked leave to plead and prove upon a new trial to be granted for that purpose. The Court below found the following facts :

1st. That the note sued on was given as part of the purchase money of the claim mortgaged.

2d. That the sale from Bowers to Benedict was evidenced by the following written agreement, to wit: “ Memorandum of agreement made and concluded this twenty-second day of April, by and between J. C. Bowers of Forest Hill, county of Placer, and State of California, party of the first part, and Lewis Benedict of Todd’s Valley, county and State aforesaid, party of the second part, witnesseth that the party of the first part hath this day sold unto the party of the second part all that certain piece or parcel of property situated at Forest Hill, known and described as follows, to wit: an undivided one-ninth interest in the mining claims known as the Gore claims, in Forest Hill, for the sum of four thousand dollars, payable in manner following, to wit: the sum of four hundred dollars to he paid in hand, and sixteen hundred dollars to be paid to Peter M. Grary on or before the twenty-fourth day of April, 1858, and the balance to be paid to said Peter M. Grary, as fast as it is taken out of the claim over and above expenses of working the interest hereby sold; the last payment, being two thousand dollars, to be in a.note given said Grary, payable four months from date, a copy of which is hereby attached, and the payments, as before described, are to be credited on said note as fast as paid from the claim, as before mentioned, and when the said sum of four thousand dollars is paid, in manner as before stated, the party of the first

part agrees to make to the party of the second part a full and complete bill of sale to said interest in said claim.

“ In witness whereof, the said parties have hereunto set their hands and seals, the day and year first above written.

“ J. 0. Bowers, (Seal.)

“ Lewis Benedict.” (Seal.)

8d. That Crary was present at the making of said agreement, and consented thereto.

4th. That a duplicate copy of said agreement and note attached was made, and' signed, and delivered, the one to Crary and the other to Bowers and Benedict.

5th. That at the time of the execution and delivery of said agreement and note attached, it was understood and agreed between the parties that if the payments were made to Crary, as provided for in said agreement, that such payments were to operate a discharge of the note sued on; but that if such payments were not made, Crary was still to hold the note and mortgage sued on.

6th. That on the day of the making of said agreement, Benedict paid to Crary four hundred dollars. Ho other payment has been made.

7th. On the trial, plaintiff made delivery in Court, for the defendants, of the said agreement and note attached, which was in his possession.

Judgment was rendered for plaintiff for the full amount of the note, and defendant appeals.