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

The complaint, after averring that on the 6th day of December, 1866, the plaintiffs were and still are the owners of the property, and are entitled to the possession thereof, proceeded as follows:

“ That said plaintiffs, on said day, being as aforesaid owners and in the possession of said personal property, the said I. D. Thompson, one of the said defendants, falsely and fraudulently, and without any consideration, obtained an order for the said brandy from said plaintiffs upon Howard’s Bonded Warehouse, wheré the said goods were in store; that afterwards, to wit: on the 7th day of said December, he, the said I. D. Thompson, falsely and fraudulently, and without any legal consideration passing to him, said I. D. Thompson, gave a paper purporting to be an order for the said two quarters and one one eighth casks of brandy, upon the said Howard’s Bonded Warehouse, to the other defendant herein, the said A. Harpending, who now fraudulently claims to be the owner of said brandy; that said orders were presented to said Howard’s Bonded Warehouse, and the said goods, to wit: said casks of brandy, were transferred, first, on the books of said warehouse, to the name of said Thompson,' and afterwards, on the said 7th of December, instant, to the name of the said Harpending. And plaintiffs further aver, that said bonded warehouse and its owners and conductors, now hold the said goods for the said defendants, or for one of them; that on the 18th day of December, instant, and whilst said goods were still in the name of said A. Harpending on the books of said Howard’s Bonded Warehouse, they, the said plaintiffs, demanded possession of said casks of brandy from said Howard’s Bonded Warehouse, its owners and conductors, who then and there were the agents of said A. Harp ending and the said Thompson, and they then and there refused to deliver the same to plaintiffs, or any part thereof. And plaintiffs further aver, that said Harpending and Thompson, or one of them, now is in the possession of said casks of brandy, through his or their agents, the said owners and conductors of the said Howard’s Bonded Warehouse.

“ The plaintiffs further aver, that at the time of obtaining said order from them, he, the said I. D. Thompson, was insolvent, which fact he, said defendant, then and there fraudulently concealed from said plaintiffs; that said defendant Thompson obtained said order for the said brandy and goods falsely and fraudulently, and without consideration, and with the preconceived intention and design of never paying for the same or any part thereof; that said plaintiffs were imposed upon and deceived, and agreed to give sixty days credit to said Thompson, for paying the reasonable value of said goods, under a firm belief that said Thompson was solvent, and intended to pay for the same. That no cash or notes were given at the time of said pretended sale, and no security obtained therefor.

“ And plaintiffs further aver, that the said defendants still unlawfully withhold and detain said goods and chattels from the possession of these plaintiffs, to their damage in the sum of one thousand three hundred and twenty-five 12-J--100 dollars.”

The defendant Thompson was defaulted. The following was the answer of the other defendant:

“ How comes A. Harpending, one of the defendants in the above entitled cause, by Cope & Daingerfield, his attorneys, and separately answers the complaint herein, and for answer thereto, denies that the plaintiffs are the owners of the property, to wit: the brandy and champagne mentioned in said complaint, or any part thereof, or were such owners at the commencement of this suit; and avers that said property then "was and still is the property of this defendant; and he further denies that his co-defendant Thompson falsely or fraudulently, or without any legal consideration passing to him, the said Thompson, gave to him, this defendant, the paper mentioned in said complaint, or any other paper, and denies that he fraudulently claims to be the owner of said brandy, and avers that he purchased said brandy of the said Thompson long before the commencement of this suit, and that at the time of such purchase the said Thompson was in possession of said brandy, and as he, this defendant, is informed and believes, the owner thereof, and that he paid the said Thompson therefor the full value of the same; and he further denies that he, either by himself or in connection with the said Thompson, unlawfully wdthholds or detains said brandy or other property, or any part thereof, from the possession of the plaintiffs, to their damage in the sum mentioned in the complaint, or in any other sum.

££ And for another and further answer to said comp he, this defendant, avers that the said Thompson, his co-defendant herein, was heretofore, to wit: on the 7th day of December, 1866, and for a long time prior thereto, had been indebted to him, this defendant, in the sum of seven thousand dollars in gold coin, for money loaned and advanced by him to the said Thompson at his request, at various times prior to the said 7th day of December aforesaid; and that the said Thompson being so indebted to him, this defendant, on the day aforesaid, sold and delivered to him, for the price and sum of four thousand dollars, certain goods, wares and merchandise, the property, as he is informed and believes, of him, the said Thompson, and in his possession, in part payment of the debt of the said Thompson to him, this defendant as aforesaid, the balance of said debt being still due and unpaid; and he further avers that the property mentioned in said complaint is a part of the goods, wares and merchandise so sold and delivered to him by the said Thompson, and that at the time of such sale and delivery he took possession of said property, and continued in the exclusive possession thereof until the commencement of this suit; and he further avers that at the time of the sale and delivery aforesaid, he had no knowledge of the circumstances under which the said property had been obtained by the said Thompson, and that if any fraud was committed by the said Thompson in obtaining it, he, this defendant, was wholly ignorant of such fraud.

“ And as matter of complaint against the said plaintiffs, be, this defendant, avers that at the time of, or since the commencement of this suit, the delivery of said property, to wit: the said brandy and champagne, was claimed by the said plaintiffs under and in pursuance of the statute providing for the claim and delivery of personal property, and that the same has been taken from his possession and delivered to the said plaintiffs, and that the said property so taken is of the full value of one thousand three hundred and twenty-five 12-J-100 dollars; and that he has been injured and damaged by the taking thereof in the further sum of two hundred dollars.”

The pleadings were verified. The defendant Harpending appealed from the judgment.

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