Appeal from the District Court of the Seventeenth Judicial District, County of San Diego.

On the 16th day of September, 1871, James E. Corbet commenced a suit against Noel Davenport, on the promissory note, for one thousand and thirty-seven dollars and fifty-five cents, mentioned in the opinion. A summons was issued, which was served by the Sheriff" on the defendant on the eighteenth of September. On the nineteenth of September the defendant filed the following statement in the case:

“Now comes the said defendant, and says that he authorizes judgment to be taken in this action, against him and in favor of said plaintiff", for the sum of ten hundred thirty-seven and 55-100 dollars and the costs of suit. The facts out of which the said demand arose are that the defendant executed to said plaintiff" a certain promissory note, on the 15th day of September, A. D. 1871, for money due the plaintiff from the defendant in the sum of ten hundred thirty-seven and -55-100 dollars, and that the said sum is justly to the plaintiff from this defendant.

“ Date San Diego, September 19th, 1871.

«NOEL DAVENPORT.”

“ State of California, San Diego County, ss:

“¡Noel Davenport, being-duly sworn, says that he has heard read the foregoing statement, and knows the contents thereof, and that the same is true of his own knowledge.

“ Dated San Diego, September 19th, 1871.

“¡NOEL DAVEEPORT.”

“ Sworn and subscribed to before me, this 19th September, 1871.

[seal.] “Gf. E. HITCHCOCK, Eotary Public.

“Filed September 19th, 1871.”

On the same day the Clerk entered a judgment for the plaintiff for the amount of the note, and costs. The same day an execution was issued and placed in the Sheriff’s hands, who levied on a stock of goods belonging to Davenport, and sold the same on the 26th and 27th days of September, 1871. At the sale, Corbet bid in goods to the amount of one hundred and six dollars, and the Sheriff received, in money, nine hundred and fifty-four dollars, over and above costs, which he was about to pay over to Corbet.

Pond, Reynolds & Co. filed a bill to enjoin the Sheriff from paying the money to Corbet, and applied for a preliminary injunction. The application for an injunction was heard on the bill and affidavits, which developed the following facts: Pond, Reynolds & Co. were a firm trading in San Francisco; and in June, July, and August, 1871, the firm sold Davenport goods, for which he became indebted to them in the sum of two thousand four hundred and seventy-one dollars and nine cents, in gold coin. On the 30th of September, 1871, the firm sued Davenport, and caused an attachment to issue, but were unable to find property.

This suit was commenced on the 6th of October, 1871, and, on application of the plaintiff, the Judge granted a preliminary injunction restraining the Sheriff from paying over the money to Corbet.

The defendant Corbet appealed from the order.

The other facts are stated in the opinion.