Appeal from the District Court, Fifth Judicial District, San Joaquin County.

Bogart was the owner of a team, consisting of horses, wagon, and harness. He was at the same time indebted to Fisher & Fisher in the sum of about six hundred dollars. Bogart met one Hichols at Virginia City, in the State of Hevada, to which place Bogart had been hauling goods from Sacramento. This was in June, 1864. Bogart informed Hichols that he was afraid his creditors would attach his team if he returned to Sacramento; and it was then agreed between him and Hichols that a fictitious sale of the property should be made to Hichols in order to keep it out of the hands of creditors; and such sale having been made, the team was taken back to Sacramento. At Sacramento, Hichols made a sale of the property to Thornton, the plaintiff. The Fishers having commenced suit against Bogart, procured an attachment and attached the property in the hands of Thornton, who then commenced this action against Hook, the Sheriff, to recover damages.

On the trial the plaintiff called as a witness A. Borland, and proved by him that in July, 1864, he was living on a ranch, and the plaintiff then placed in his possession the property in controversy, and that while he was keeping it for the plaintiff it was attached and carried away by the Sheriff.

On cross examination of this witness, the defendant’s attorney asked him if he knew where Thornton procured the possession of the property, and if he knew whether before the property was put in his possession by Thornton it had ever belonged to Bogart, or was ever in Ms possession. The Court, on objection of the plaintiff’s attorney, refused to allow the questions to be put. The plaintiff then rested.

The defendant then introduced testimony upon the issues • and upon the question whether Thornton, when he purchased of Nichols, knew of the fraud on the part uf Bogart and Nichols; and on this point the testimony was conflicting. There was also testimony as to the consideration paid by Thornton, the plaintiff.

The defendant asked the Court to give the jury the following instruction, which was refused; to which refusal he excepted:

“If the jury find from the evidence that Thornton procured his title to the property from Nichols, and that Nichols procured his title and possession fraudulently from the Bogarts, and with the intent to defraud their creditors, that then the said creditors would have the legal right to follow and attach the property in his hands, except he has proved to the satisfaction of the jury that he was a bona fide purchaser for a valuable consideration, and the burden of proof to show that part is on him. To constitute Thornton a bona fide purchaser for value, he must not only have had no notice of the fraud of Nichols in procuring the possession, but he must also have paid some new consideration for the property prior to his discovery of said fraud. If Thornton only relinquished an antecedent debt due him from Nichols of five hundred dollars as a part payment of the purchase, and if he did not actually pay Borland the one hundred dollars which he assumed to pay for Nichols, until after the discovery of the fraud by which Nichols acquired possession, that then neither or both of said pretended payments are sufficient in law to clothe Thornton with the character of a bona fide purchaser for valuable consideration, and they will find a verdict for the defendant.”

The plaintiff recovered judgment, and the defendant ■ appealed from an order denying a new trial

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