Appeal from the Twelfth Judicial District.

This action was commenced in the District Court of the Twelfth District, on the fifth day of January, 1858. The complaint sets forth that on the tenth day of January, 1858, the plaintiff, II; B. Spencer, recovered a judgment against the defendants, E. Vigneaux, E. Grisar and C. De Boom, in the Superior Court of San Francisco, for $22,061.91 and costs in the sum of $672.73 ; that defendants have since made certain payments thereon, leaving still due $14,768.44, for which, with interest, plaintiff asks judgment.

The answer of the defendant 0. De Boom admitted the rendition of the judgment as alleged, and for defense set forth substantially the facts as found by the Judge and shown in his findings, of which a copy is given below. The clause in this answer relied upon by appellant, as an admission showing negligence in not introducing the defense in the former action, is as follows: “ That before any judgment was rendered in said (former) action this defendant was informed and believed that the said account was incorrect in this, that it did not credit the defendants, said firm, with a certain sum of ten thousand dollars, ($10,000) which sum, as this defendant had been informed and believed, had been paid to the plaintiff on the nineteenth of November, 1849, by said firm of Be Boom, Vigneaux & Grisar, through their correspondents, the house of Be Boom & Longenhose, of Antwerp, in Belgium; that he, this defendant, had no personal knowledge of the payment by his said firm of the said sum of $10,000 in manner aforesaid, nor had he access to the books or correspondence of his said firm, which were then and have ever since remained at Valparaiso, in the custody of Vigneaux, who has always since refused to deliver said books and correspondence to this defendant, or to permit him to examine them; and who falsely and fraudulently denied that the said sum of $10,000 had been paid to the plaintiff, and this defendant was therefore unable before the trial of said action to ascertain the facts with certainty, and to procure the evidence thereof,” etc.

The answer of defendant Grisar was substantially the same as that of Be Boom, except that it denied, upon Grisar’s part, any knowledge or information of the payment before the trial of the other action, and stated that he did not appear therein, but suffered defendant.

The case was tried by the Court without a jury, and from the evidence the Judge found the facts, and stated his conclusions of law as follows:

“ 1. That on the tenth day of January, A. D, 1853, in the Superior Court of the city of San Francisco, the plaintiff recovered a judgment against the defendants for the sum of twenty-two thous- and and sixty-one dollars and ninety-one cents ($22,061.91) with interest from the date of the judgment at twelve per cent, per annum, and six hundred and seventy-two dollars and seventy-three cents ($672.73) costs; that on the eighteenth of August, 185-3, a payment was made of ten thousand dollars ($10,000) on said judgment, by one Chaviteau, a receiver in possession of the property of the defendants; and that the defendants paid the interest, on the balance thereof to the thirty-first of August, 1854, leaving now unpaid on the judgment the sum of twelve thousand seven hundred and thirty-four dollars and sixty-four cents ($12,734.64) with interest thereon from the thirty-first day of August, 1854, at twelve per cent, per annum.

“ 2. That said judgment was rendered in an action brought by the plaintiff against the defendants, as partners under the name of De Boom, Vigneaux & Grisar, to recover the balance alleged to be due to the plaintiff from the defendants upon an account rendered to the plaintiff in October, 1850, by the defendant Vigneaux in the name of the firm, the balance so claimed being the sum of eighteen thousand and thirty-one dollars and twenty-five cents ($18,031.25) with interest thereon at the rate of twelve per cent, per annum from the first day of March, 1851, and the judgment was for the full amount of said alleged balance and interest.

“ 3. That the said account was erroneous in this: that it omitted to credit the defendants with a sum of ten thousand dollars, ($10,000) which was paid by them to the plaintiff on the nineteenth day of November, 1849; that the judgment thereon was for a sum greater than was justly due by the said sum of ten thousand dollars, ($10,000) with interest thereon at the rate of twelve per cent, per annum from the nineteenth day of November, 1849, and that the amount actually due from the defendants to the plaintiff, and for which the judgment should have been rendered, has been overpaid by the payments made by the defendants and said Chaviteau on the judgment.

“ 4. That the said defendants were copartners in business at Valparaiso, in the republic of Chili, under the name of De Boom, Vigneaux & Grisar, in the years 1848, 1849 and 1850. That in December, 1848, the defendant De Boom left Valparaiso and came to California, and did not afterwards return to Valparaiso. That the defendant Grisar left Valparaiso in 1850, and came to California ; and that the payment of the said sum of $10,000 was made by the house at Valparaiso, during the absence of the defendant De Boom from that place, and said account was made out at Valparaíso, and was rendered in the name of the firm by said Vigneaux, in the absence of the defendants Be Boom and Grisar.

“ 5. That the defendant Vigneaux came to California about the latter part of the year 1851.

“ 6. That in the action above referred to on said account, the defendants were all personally served. That the defendants Vigneaux and Grisar made no defense, and the judgment was entered against them by default. That the defendant De Boom appeared and answered, denying the indebtedness alleged; and on the trial the defendants Vigneaux and Grisar were called as witnesses on the part of the plaintiff to prove the correctness of the account, and did testify on behalf of the plaintiff, and were the only witnesses examined on that point.

“ 7. That at the time of the trial, the plaintiff and defendant Vigneaux did know, but that the defendant Be Boom and the defendant Grisar did not know, of the payment of $10,000 having been made, that fact having been fraudulently concealed from the said Be Boom and, Grisar by them codefendant Vigneaux and the plaintiff, and they did not ascertain said fact until long after the trial.

“ 8. That the account on which the said action was brought was rendered to the plaintiff, and the said judgment obtained thereon for a larger sum than was due, by fraud and collusion between the plaintiff and the defendant Vigneaux.

“ 9. That the plaintiff was not a resident of or in the State of California at the time said judgment was rendered, and has ever since that time been absent from this State.

“ And as a conclusion of law, the Court finds that the defendants Be Boom and Grisar, and each of them, are entitled to have the said judgment declared satisfied, and to a perpetual injunction against the plaintiff to restrain him, from any proceeding whatever to collect any balance thereof, and are entitled to judgment against the plaintiff for their costs and disbursements in this action.

“ And further, the alleged liability of all the defendants being a joint one, that defendant Vigneaux, notwithstanding his default has been entered, is entitled to the like judgment.

“ And it is ordered that judgment be entered accordingly in favor of all the defendants.”

Judgment was accordingly entered for all the defendants, from which the plaintiff appeals.