Appeal from the District Court, Eleventh Judicial District, El Dorado County.

The plaintiff brought suit against the defendant to recover the possession of four certain mules, four sets of harness, and a wagon, or their value, alleged to be seven hundred and fifty dollars. The defendant denied plaintiff’s title as alleged, and pleaded a sale and delivery by him before suit brought of the demanded property to W. L. Perkins & Co. All of said property, except one mule and one set of harness, was delivered to the plaintiff by the Sheriff of El Dorado County, under a writ of replevin issued at the commencement of said action. One day after the commencement of said action, W. L. Perkins and E. W. Robinson, partners, under the firm name of W. L. Perkins & Co., brought suit against said plaintiff Putnam, James B. Hume, Sheriff, and M. G. Griffith, Deputy Sheriff, of said county, for the possession of all the property described in Putnam’s complaint, and a certain saddle, or their value, alleged to be one thousand one hundred and twenty-five dollars. To this action the defendants therein, among other things, made answer as follows:

“How come the above named defendants, and for their answer, to the complaint of said plaintiffs herein :

“1st. They deny each and every allegation in said complaint set forth.

“2d. Further answering, defendants aver that said defendant Samuel Putnam is the only real party in interest in said action, and said defendant Putnam avers that he is now, and was during all the time mentioned in plaintiffs’ complaint, the owner of all the property set forth in said complaint, except such as was designated by defendant Putnam at the time of the taking, and left in possession of one Lamphier or plaintiff" to wit: all of said property except three mules and their harness.

“ That said defendants, Griffith and Hume, were only acting as Sheriff and Under Sheriff' in the premises, in the execution of legal process, as provided by law in actions of replevin, in the case of Samuel Putnam against one Judd Lamphier, commenced and prosecuted in said District Court by said Samuel Putnam against said Lamphier for the claim and delivery of said property, to wit: three mules.

“Defendants deny that said plaintiffs, on the 9th day of May, 1866, or at any other time, were the owners of or entitled to the possession of said property.”

By the consent of all the parties thereto, said actions were consolidated, and tried together before the Court, without a jury. As to the existence of the contract of sale of the demanded property in said first described action, as found by the Court, there was a substantial conflict of evidence in respect to said contract. Plaintiff Putnam gave material testimony. At the trial the Court found the following facts and conclusions of law, viz:

“1st. That the property described in the complaint of plaintiff, to wit: four mules, four harness, and one wagon, were, on the 10th day of May, 1866, ever since have been, and now are the property of Samuel Putnam, the plaintiff in oue of the suits and defendant in the other; that said property is worth the sum of seven hundred and fifty dollars; that at the commencement of the action of Samuel Putnam against Judd Lamphier, said Putnam was, and ever since has been, entitled to the possession of all of said property.

“ 2d. That said Putnam, in November, 1864, employed defendant Lamphier to drive the animals and wagon described in the complaint for about two months, by the month; that said Putnam had owned this team for about five years; that afterwards Putnam entered into an agreement with Lamphier to drive the team on shares, which continued until April, 1865.

“3d. That in April, 1865, Putnam and Lamphier entered into the following agreement, viz: Lamphier was to take the team and property and use it, and pay Putnam fifty dollars per month until he had paid him the sum of six hundred and sixty-two dollars and fifty cents, and one and one halt per cent per month monthly ^on this sum, and when Lamphier had paid in this way the said sum of six hundred and sixty-two dollars and fifty cents, the team and property was to he the property of Lamphier, and then Putnam was to give him a bill of sale of the property, but until then the property should be the property of Putnam, and in the event that Lamphier should fail to pay as above stated, Putnam was to have the team back and retain the amount which should he paid by Lamphier as rent for the use of the team. It was also agreed if Lamphier could not pay the fifty dollars per month, he should pay as much as he could, but the interest should be paid monthly.

“4th. That Lamphier continued in possession of the team after his agreement to work it on shares under this agreement, until he finally sold it to plaintiffs, Perkins & Robinson. That Lamphier never paid Putnam anything on this agreement, nor did Putnam see him until September 16th, 1865, at Shingle Springs, El Dorado County, when Lamphier paid him two hundred dollars on the agreement, which Putnam applied as follows: fifty-four dollars on the interest, one hundred and forty-six dollars on monthly rent. That Lamphier agreed to make another payment within thirty days. That afterwards Putnam did not see Lamphier until March, 1866, at Sacramento. That then and there Putnam demanded of Lamphier the money on the agreement or the property. That Lamphier then and there told him he could not pay him, and told him the team was his, and to go with him on the following morning and get it, which Putnam said he would do. The following morning Lamphier was missing, and Putnam did not know where to find the team. That Putnam never received anything on this agreement except the two hundred dollars, September 16th, 1865.

“That sometime about March 2d, 1866, Lamphier sold his team to Perkins & Robinson. That the first time Putnam saw the property after September 16th, 1865, was when the Sheriff took them in this action, May, 1866. Lamphier was in control of the team at the time of the taking.

“6th. That after the taking by the Sheriff, and at the time of the commencement of the suit by Perkins & Robinson, the property was, under an agreement between the parties to abide the results of these suits, delivered to plaintiffs, Perkins & Robinson.

“7th. That the value of this property is the sum of seven hundred and fifty dollars.

“As conclusions of law, I find: That at the time of the commencement of these actions, Samuel Putnam, plaintiff in one suit and defendant in the other, was the owner of the property described in the pleadings in these cases, and entitled to the possession of the same, and that he is now the owner and entitled to the possession thereof. That said Samuel Putnam is entitled to a judgment against Judd Lamphier, W. L. Perkins, and P. W. Robinson, for the possession of the same; or if possession cannot be had, then in lieu thereof for the sum of seven hundred and fifty dollars—the value thereof and costs.”

Judgment passed for plaintiff, Putnam, in accordance with said findings; and defendants Lamphier and W. L. Perkins & Go. moved for a new trial, on the grounds, to wit: First— Insufficiency of the evidence to justify the decision; Second—That the decision is against law; and Third—Error in law occurring at the trial, and excepted to by the moving parties. The motion was denied, and the parties moving therefor appeal from the judgment and from the order denying said motion.