[No. 5,774.] [Filed April 1, 1878.] WATSON vs. CORNELL. RECORD ON APPEAL-WHAT IT MUST CONTAIN. -The record must contain a copy of the undertaking on appeal. The omission is not cured by the certificate of the clerk, that a good and sufficient undertaking on appeal in due form of law has been executed, and is on file in said action in his office. The appeal in this case was dismissed without prejudice. The record did not contain a copy of the undertaking on appeal. The Clerk's certificate is in these words: "I, W. P. Hall, County Clerk of Lassen County and ex-officio Clerk of the District Court in and for said Lassen County, do hereby certify that the foregoing are full, true, and correct copies of the orginal papers now on file in my office in the said action, namely: 1. The complaint; 2. The amended answer; 3. The finding; 4. The judgment; 5. The notice of appeal; 6. The statement on appeal; 7. This certificate. "And I further certify that a good and sufficient undertaking on appeal in due form of law has been executed, and is now on file in said action in my office. "In witness whereof I have hereunto set my hand, and affixed my official seal, this 28th day of August, 1877. "W. P. HALL, Clerk." PER CURIAM. The record does not contain a copy of the undertaking on appeal, nor does the certificate of the Clerk, as far as it relates to the undertaking on appeal, conform to Section 953 of the Code of Civil Procedure. Appeal dismissed, without prejudice to another appeal. [No. 5,671.] [Filed April 3, 1878.] BILLINGS vs. DREW. PRACTICE AND PLEADINGS-AFFIRMATIVE AND NEGATIVE DEFENSES.-Where the answer of a defendant contains several denials, and also an averment of new matter as a defense, it is erroneous to deprive the defendant of the benefit of the denials contained in their answer. The defendant has a right to set up negative as well as affirmative defenses to an action, and the affirmative matter, separately pleaded, does not operate as a waiver or withdrawal of the denials contained in other portions of the answer. The answer of the defendant contained several denials and one averment of new matter relied upon as a defense. The denials were: First-That plaintiff was owner of the personal property mentioned in the complaint. Second-That the plaintiff had, at any time, the possession of said personal property. Third-That the defendants took the property from the possession of the plaintiff. The new matter set up in the answer was to the effect that the property was the property of Woods, and that it was taken by the defendant Drew, as Sheriff, by virtue of a writ of attachment issued against Woods at the suit of the defendant Skaggs, and in this connection, and as part of the affirmative defense, it is alleged that the plaintiff claims the property "under and by virtue of a pretended purchase thereof from the said A. S. Woods, and that said pretended sale of said goods and chattels by the said Woods to plaintiff, if made at all, was made fraudulently and for the purpose of hindering and delaying creditors of the said A. S. Woods in collecting their just debts, and particularly," etc. In this condition of the pleadings the Court below, at the instance of the plaintiff, gave the jury the following instruc tion: "The defendants in their answer seek to justify the taking of the property under an attachment issued out of this Court on the 24th day of October, 1876, in an action in which the defendant E. M. Skaggs was plaintiff, and A. S. Woods and John N. Larkin were defendants, which the defendants allege was levied upon the property by the defendant Drew, as Sheriff, as the property of A. S. Woods, and they allege that Billings, the plaintiff, claims to be the owner of said property under and by virtue of a purchase thereof from A. S. Woods, and that the sale by Woods to the plaintiff was made fraudulently for the purpose of hindering and delaying the creditors of said Woods in collecting their just debts, and particularly the defendant E. M. Skaggs. By these averments the defendants admit there was a sale of the property by Woods to the plaintiff, which was a valid sale as between said Woods and the plaintiff, and as the defendants seek to avoid the sale on the grounds that it was made for the fraudulent purpose of hindering and delaying the creditors of said Woods, the burden of proof is upon the defendants to show affirmatively by a preponderance of evidence that said sale was made by Woods for the fraudulent purpose of hindering and delaying his creditors or the defendant E. M. Skaggs out of his debt; and if the evidence in this case fails to show that said sale was made by Woods to the plaintiff for the purpose of hindering or delaying the creditors of said Woods, you will find a verdict for the plaintiff." This instruction was erroneous, in that it deprived the defendants of the benefit of the denials contained in their answer. They had the right to set up negative as well as affirmative defenses to the action, and the affirmative matter, separately pleaded, did not operate as a waiver or withdrawal of the denials contained in other portions of the answer. (Buhne vs. Corbett, 43 Cal. 264). Judgment and order denying a new trial reversed, and cause remanded for a new trial. [No. 5,744.] [Filed April 1, 1878.] PULLIAM vs. CHEROKEE FLAT BLUE GRAVEL CO. PRACTICE AND PLEADINGS - EVIDENCE. The circumstance that an application to obtain title had been filed in the United States Land Office does not tend, even in the most remote degree, to show exercise of control over the premises, and to admit such evidence for such a purpose is error. Belcher and Belcher for plaintiff. P. O. Hundley for defendants. This was an action to quiet title to mining ground. The Court below permitted the defendant to introduce the testimony set forth in the opinion which was held, error. There were other errors assigned, but the order denying new trial was reversed for the one referred to alone. PER CURIAM. The corporation defendant was permitted, against the objection of the plaintiff, to prove that it had made an application at the United States Land Office to obtain the title to the premises in controversy. The avowed purpose of this proof was to show that the defendant had exercised control and dominion over the premises. But the circumstance that such an application had been filed in the Land Office did not tend, even in the most remote degree, to show the exercise by the applicant of control over the premises. Judgment and order denying a new trial reversed, and cause remanded for a new trial. Remittitur forthwith. [No. 5,189.] [Filed April 1, 1878.] LUCE VS. ZIELE. Wm. M. Stewart for defendant and appellant. This was an action by Luce for money alleged to have been due him upon a contract for threshing. It appears that he made the contract with one McCormick, who had a contract for harvesting defendant's grain, and that after he had worked a while he began to entertain doubts as to the certainty of his pay. He then went to see the defendant who was the owner of the grain being threshed, and who was the owner of the ranch also. He was referred by the defendant to his brother, John Zeile. The plaintiff, it is claimed, stated to John Zeile that he had not been paid by McCormick, and that he would do no more work unless he knew he was going to get pay for it. He was told by John Zeile that when the work was done he should get an order from McCormick for the amount, and that he would pay him. He did finish the work and got an order for the whole amount of his bill for the labor performed under his contract with McCormick, and for that performed afterward. McCormick failed. The Court below gave judgment for plaintiff. The defendant claimed that the contract relied upon was an agreement to pay the debt of another, and not being in writing was void; that the defendant had employed McCormick to do the work, and that McCormick, if any one, was liable to the plaintiff. PER CURIAM. It does not appear how much of the claim for which the plaintiff recovered accrued before, or how much accrued after the failure of McCormick, and the alleged conversation had by the plaintiff with Dr. Zeile and John Zeile. Judgment and order denying a new trial reversed, and cause remanded for a new trial. Remittitur forthwith. [No. 10,313.] [Filed March 28, 1878.] PEOPLE vs. WONG SHU SHUT. The defendant was convicted of the crime of murder in the first degree, and moved for a new trial on the ground, among others, that the verdict was contrary to the evidence, and the motion having been denied, he brings this appeal. Upon a careful examination of the record, no evidence is |