Irwin

The defendant had judgment in the above-entitled cause, from which, and an order denying a motion .for a new trial, plaintiff appeals. The case was here on a former appeal from a judgment in favor of plaintiff for a nominal sum, from which he appealed, whereupon the judgment was reversed and a new trial ordered: 91 Cal. 119 , 27 Pac. 601 . The general history of the case is there stated, and will not be repeated here.

At the last trial, the defendant (respondent here), for the purpose of showing that the property upon which he levied as sheriff had been discharged from the lien of plaintiff’s chattel mortgage before such levy, introduced- in evidence a bill of sale of certain other personal property from Robert L. Gouts to plaintiff, executed and acknowledged by said plaintiff and said Gouts under date of August 11, 1890. There was no abuse of discretion on the part of the court below in permitting the defendant, at the trial, to amend his answer so as to aver “that the mortgage on the hay and grain levied on in said action of Gouts v. Gouts and hereinafter mentioned was released before the said levy was made.”

*331 The “bill of sale,” as it is termed, purported to be a…