Appeal from the Seventh Judicial District.

This is an action brought by the respondent, Easterly, to recover jointly of the defendants, Bassignano and Larco, the sum of $2,248.64 for goods, wares and merchandise sold and delivered, and for money advanced by the said plaintiff to said defendants.

The defendant Nicolas Larco filed a separate answer, specifically denying the allegations of the complaint, and denying that he was in any way interested in the purchase of the goods or the borrowing of the money alleged in the complaint. There is also an answer on file, purporting to be the answer of the defendant Bassignano, denying generally the allegations of the complaint. The cause came on for trial on the fourteenth day of June, 1860, and the plaintiff, to sustain his said cause, called the defendant Bassignano as a witness. The defendant Larco objected to the introduction of said Bassignano as a witness, on the ground that, being a codefendant, and being prima facie liable for the whole debt, he was interested and therefore incompetent. The objection was overruled and Bassignano testified as follows: That he resided in Napa county and worked a ranch; that Nicolas Larco of San Francisco was, he considered, a partner with him in the ranch, and was interested in the profits; that the debt sued for in this action was for goods, wares and merchandise sold and delivered to him, Bassignano, and for money loaned him, and that the goods were used for the purposes of the ranch, and that he éxpended the money loaned Mm m paying off the hands working on the ranch ; that the bill of items shown Mm, made out in the name of Easterly & Co. in account with A. Bassignano, was a correct account of goods delivered and money loaned Mm. He also testified, on erossexammation, that the contract of partnersMp with Larco was made in San Francisco, m the back room of Larco’s counting house; that the contract was verbal, and no writings were drawn between them, and that no person was present; that Larco was a large merchant and could have furMshed the goods cheaper than they could be purchased m Napa; that he, Bassignano, had made no defense to the action, and had authorized no person to file an answer m Ms behalf.

At this stage of the proceedings, Gr. W. Towle, the person whose name is signed to the answer on file purporting to be the answer of Bassignano, arose in open Court and stated that “ Easterly, the plaintiff, had requested him to file an answer for defendant Bassignano ; that he, Towle, said to plaintiff that he had better see the defendant first; that Easterly said there was no necessity, that he had authority from defendant Bassignano to employ counsel, whereupon he, Towle, did file the answer to which his name appears as attorney.” The defendant Larco made a motion to strike from the files of the Court the answer purporting to be the answer of the defendant Bassignano, and also to strike out the testimony of said Bassignano, both of which said motions were denied by the Court. To which defendant Larco excepted.

The jury rendered a verdict in favor of the plaintiff for the sum of $2,248.64. A motion for a new trial was made by the defendant Larco, which was overruled by the Court. This appeal is taken by defendant Larco from the order refusing a new trial, and from the judgment.