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

On the 18th of March, 1865, Armstrong. & Wimmer purchased from plaintiff Stringer a quantity of upholstery and furniture, and to secure a part of the purchase money executed a' chattel mortgage on the -same. Armstrong & Wimmer were keeping a house called the “Willows,” at San Francisco. On the 18th day of May, 1865, one Martin D. Heynemann recovered a judgment against Armstrong in the District Court of the Twelfth Judicial District, City and County of San Francisco, and on the day following procured an execution on the same, which was placed in the hands of the defendant, who was Sheriff, and he by virtue of the same, levied on and took possession of the mortgaged property.

Plaintiff claimed that two days before the -levy, Armstrong & Wimmer had surrendered possession of the property to him, and brought an action against the Sheriff to recover possession of the same. The complaint recited the foregoing facts, and to show the validity of the chattel mortgage, averred : “ That said furniture and upholstery was furnished for and used "in the furnishing of the hotel, in the City and County of San Francisco, known as the Willows.” The answer denied “ that said furniture was used in furnishing the hotel, in the City and County of San Francisco, known as the Willows,” and contained an averment that “ the place called the Willows is not a hotel, and that it was not furnished. or kept for the accommodation of travellers, nor used as a hotel at the tipie of the alleged purchase,” etc.

On the trial the plaintiff’s counsel offered the chattel mortgage in evidence, and rested.

The defendant’s counsel then moved the Court for a non-suit, because no proof had been introduced in support of the allegation of the complaint that the upholstery and furniture was furnished for and used in the furnishing of the hotel called the “ Willows,” and that no proof had been offered in'support of the allegation that Armstrong & Wimmer had surrendered possession of the property to plaintiff. The Court denied the motion, and defendant’s counsel excepted.

Defendant’s counsel called a witness by whom he offered to prove that the “ Willows ” was not and had not been kept as a hotel. Plaintiff’s attorney objected to the evidence as irrelevant under the pleading, and the Court sustained the objection, to which defendant’s attorney excepted.

Defendant’s attorney then moved the Court for leave to amend the answer, so as to deny that the mortgaged property was furnished for or used in any hotel. The Court refused to allow the amendment, and defendant’s attorney excepted.

The Court rendered a judgment in favor of plaintiff for the possession of the property. Defendant appealed from the judgment, and from an order denying a new trial.