Appeal from the Seventeenth Judicial District.

The Court below found the facts as follows: La a conversation about the tenth day of August, a.d. 1861, between the plaintiffs and defendant, both being at the time owners in the mining claims and property of the Highland Masonic Mining Co. at Wet Ravine, in Sierra County, defendant stated to plaintiffs that he had made arrangements to buy an interest in the company from one John Thomas, but would not do so unless the plaintiffs would also purchase an interest, so that they might have a majority of interests in the company, in order that the mining claims of the company might be worked and managed in accordance with the views and wishes of plaintiffs and defendant. Whereupon the plaintiffs stated their readiness to purchase an interest for the purposes named, and requested defendant to ascertain what interest they could purchase. It was agreed that plaintiffs should furnish the money, that the defendant should buy the claim for them, but should act as if purchasing for himself, as it was supposed that he could buy it cheaper than plaintiffs—they having been active in some dispute or trouble in the company as to the manner of working the claims; that he should take a deed in his own name, and hold the interest until the October meeting of the company, and at that meeting should attend and vote with them (i. e. as they wished) and should at any time after said meeting, when it might be demanded of him, make a transfer or conveyance of the interest to them. A few days afterwards defendant informed plaintiffs that he had arranged to buy an interest, one undivided thirty-second of the mining claims and property of the said Highland and Masonic Co., of John Cowen, for the sum of $1,600; to which sum plaintiffs assented and handed defendant fifty dollars, which he said was wanted to “ bind the bargain,” he informing them that they could have a few days’ time to raise the balance of the purchase money, and they agreeing to raise it.

On the seventeenth day of August, a.d. 1861, the plaintiffs at Wet Ravine gave defendant the balance and ten dollars over (in all $1,610)—$1,600 to be paid to John Cowen for his interest, and ten dollars for expense of deed and defendant’s incidental expenses to Forest City, where the said Cowen was, to complete the purchase. The purchase was to be made, according to previous understanding of the parties, for plaintiffs, but in the name of defendant. On the day last named defendant purchased the interest from John Cowen, which is designated as share or interest Ho. 3, consisting of an undivided thirty-second of the mining claims, etc., as aforesaid, paying therefor $1,600 of the money obtained from plaintiffs, and taking a deed in his own name. Since the month of October, 1861, plaintiffs have demanded of defendant a deed of the premises, with which demand he has failed to comply.