Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.

This was an action on a promissory note alleged to have been executed by the defendants as copartners, under the name of H. Getleson & Pestner. Defendant Getleson made default; defendant Pestner answered, denying his liability on the note.

The case was tried October 16, 1863, before a jury, and after the close of the testimony the Court, on motion of the attorney for defendant Pestner, granted a nonsuit as to him, with leave to plaintiff to move to set aside the nonsuit, and directed the jury to find a verdict for plaintiff against defendant Getleson. October 19th, plaintiff’s attorney filed and served on defendant Pestner’s attorney, the following notice :

“ Please take notice, that the plaintiff intends to move the Court to set aside the judgment of nonsuit herein, and for a judgment against both of the defendants, and that the proposed statement of the case, upon which said motion will be made, is herewith served upon you.”

Plaintiff’s attorney, on the same day, filed and served a statement embodying the evidence and rulings of the Court, with his exceptions thereto. This statement, after the title of the case, was headed:

“ Statement of case on motion to set aside nonsuit in favor of defendant Pestner, and on motion for judgment upon the pleadings and proof, against both defendants.”

The statement did not contain a specification of the errors upon which plaintiff would rely. " On the 28th of October plaintiff’s attorney served on the attorney for Pestner a specification of the grounds upon which he would rely on his motion to vacate the judgment of nonsuit, but the latter returned it. Plaintiff then moved the Court to be allowed to amend his statement by inserting the specification of grounds upon which he would rely, but the Court denied the same May 2, 1864. June 29, 1864, on motion of the attorney for defendant Pestner, an order was made striking the statement from the files of the Court. July 2d plaintiff’s attorney moved the Court to sign the statement as the settled statement of the case, which was denied July 11th.

The other facts are stated in the opinion of the Court.