Terry, C. J., concurring.
The notice of appeal, and the undertaking on appeal, were filed on the 16th day of December, 1857, and the notice served on the respondent the next day; but the respondent having excepted to the sufficiency of the sureties within the five days after the filing of the undertaking, he was not injured by a failure of appellant to serve notice of appeal on the day the undertaking was filed. The undertaking on appeal was sufficient, under section three hundred and forty-eight of the Code, though insufficient to stay the issue of the execution.
1. We think the Court below erred in excluding the question put by defendant’s counsel to the witnesses, Andrews and Mc-Kajq touching their interest in the event of the suit.
2. The first and second instructions given by the Court, at the request of the plaintiffs, were erroneous, under the decision of this Court in the case of The Bear River Company v. The York Company. (8 Cal. Rep., 327.) The opinion in that case was rendered after the most mature and anxious consideration. It is but just to say that the present case was tried in the Court below before the decision in that case was rendered.
It is unnecessary to notice the other assignments of error.
Judgment reversed, and cause remanded.