Appeal from the Third Judicial District.

The complaint in this case sets forth in substance:

That there had been a judgment rendered in the District Court of the Fourth Judicial District, in favor of the defendant, in an action of ejectment wherein one Adams was plaintiff, and one Lansing defendant. That the plaintiff, Adams, in that action, claimed the exclusive title of the land sought to be recovered therein, through and under the will of Luis Peralta. That by said will the premises then in controversy, as well as the whole Rancho of San Antonio, of which said premises were a part, were devised to the four sons of said Luis, from and under whom defendant therein derived his title. That the plaintiff, Adams, in that case claimed to derive his title from the daughters of Peralta, alleging that the “ will ” was invalid, and that the rancho descended in equal proportions to all the sons and daughters of Peralta in common, and that he, Adams, was therefore entitled to recover a portion of the premises sued for.

That on the trial of the action in the said District Court judgment was rendered in favor of defendant, Adams, thereby confirming the “ will ” as valid, and thus, in effect, deciding that by it the four sons had a valid title to the San Antonio Rancho, and that the daughters, their “ sisters,”, had no title whatever thereto.

That an appeal had been taken from said judgment, and said appeal being then pending and undetermined in the Supreme Court of the State of California, the defendant Fitch, on the fifth day of February, 1861, made and delivered to E. W. F. Sloan and D. P. & A. Barstow (who were attorneys for defendant in case of Adams v. Lansing), an agreement in writing, in the words and figures following, viz.:

“ Memorandum of an agreement between C. L. Fitch, first part, and E. W. F. Sloan and D. P. and A. Barstow:

I, the undersigned, do hereby agree to pay to E. W. F. Sloan and D. P. and A. Barstow the sum of five hundred dollars on demand after the said Sloan and Barstow shall (as attorneys) have secured a final decree of the Supreme Court in any of the cases now pending, or hereafter instituted, in which the “ sisters” claim adversely to the title under the “ will ”—which shall declare the said sisters’ title null, and that the title of the “ Peralta Sons ” is the only valid title under the “ will.” Provided, such decision of the Supreme Court be obtained by and through the efforts (as attorneys) of said Sloan and Barstows on or before the first day of January, 1862.

Encinal San Antonio, February 5th, 1861.

Chas. L. Fitch.”

The complaint then avers that said Sloan and Barstows did well and faithfully perform the legal services aforesaid, mentioned in said agreement, and did, on the seventh day of May, 1861, by their legal services as attorneys, secure a final decree and decision of said Supreme Court, in said case of Adams v. Lansing, etc., which declares that the title derived under said “ will,” by his said sons, was the only valid title to said rancho, and that the adverse claim thereto, of the said “ sisters,” was null and void.

The complaint further avers that on June 29th, 1861, payment of said sum of five hundred dollars was demanded of said Fitch, and refused by him, and that the said contract was afterwards, and before this action was commenced, assigned to plaintiff, and demands judgment for said five hundred dollars and interest.

The defendants answered, denying that on the seventh day of May, 1861, or at any other time, the said Sloan and Barstows, by their legal services, or otherwise, secured in said Supreme Court a final decree or decision in said case of Adams v. Lansing, which declared 'that the title derived under said will by his said sons was the only valid title to said rancho, and that the adverse claim thereto of said “ sisters ” was null and void. Upon this issue the cause was tried by the Court.

The only evidence given upon the trial was the report of the case of Adams v. Lansing, as contained in 17 Cal. 624, which report is, by stipulation, made a part of the record. Upon this evidence the Court made its findings, and rendered its judgment for the amount claimed in favor of the plaintiff. Defendant moved for a new trial, which was denied, and from this order and the judgment he appeals.