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

On the 15th day of September, 1871, defendant Davenport gave defendant Corbet the following note:

“San Diego, September 15th, 1871.

“ On demand, I promise to pay J. B. Corbet, or order, for value received, ten hundred and thirty-seven dollars and fifty-five cents, in full of all demands to date, in United States gold coin.

“EOEL DAVEEPOET.”

On the 16th of September, 1871, Corbet commenced suit against Davenport on this note, and before service of summons, and on the nineteenth day of September following, Davenport executed and filed the following statement, verified by his oath:

“James E. Corbet, plaintiff, v. Eoel Davenport, defendant.

“Eow comes the said defendant, and says that he authorizes judgment to be taken in this action, against him and in favor of the said plaintiff", for the sum of ten hundred and thirty-seven dollars and fifty-five cents 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 and thirty-seven dollars and fifty-five cents, and that the said sum is justly to the plaintiff" from the defendant.

“Dated, San Diego, September 19th, 1871.

“EOEL DAVEEPOET.”

Upon this statement, the Clerk rendered judgment for Cor-bet, and on the same day an execution was issued, which ■ was levied upon Davenport’s stock in trade at San Diego, and the same was sold. At the sale Corbet bid in goods of the value of one hundred and six dollars, and the Sheriff received in money nine hundred and fifty-four dollars. The plaintiffs, who were merchants in San Francisco-; had sold to Davenport goods of the value of more than two thousand dollars, and on the thirtieth day of September commenced suit against him to recover the same, and caused an attachment to issue. The plaintiffs soon after commenced this action, and alleged that the Sheriff was about to pay the money to Corbet, and that Davenport was insolvent, and that the judgment of Corbet against Davenport was fraudulent, and Davenport did not owe Corbet, etc., and obtained an injunction restraining the Sheriff from paying the money to Corbet. An appeal was taken from the order granting this injunction, and it was reversed at the October Term, 1872. The case is reported in 44 Cal. 481.

Corbet, in his answer in this case, set up as new matter, and as the facts out of which the indebtedness of Davenport to him arose, the following:

That on the 15th day of September, 1871, Davenport was indebted to one W. H. Buttrick in the sum of ten hundred and thirty-seven dollars and fifty-five cents, for goods before then sold him by Buttrick, for which Buttrick held his note, and that on the day last aforesaid Buttrick offered to sell the note to Corbet, but Corbet refused to buy it because it was past due, and that Buttrick then told Davenport he could sell the indebtedness if Davenport would give Corbet a note for the sum, and that Davenport consented, and gave Corbet the note sued on, and Buttrick surrendered him his old note, and Corbet paid Buttrick eight hundred dollars.

The other facts are stated in the former report of the case, and in the opinion in this case.