
    HOLMES v. OHM et al.
    
    Hr an action on an undertaking on appeal, it is a sufficient averment of the delivery of the undertaking, if the complaint show that it was filed in the Clerk's office.
    Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.
    
      John Reynolds, for Appellant.
    
      W. W. Chipman, for Respondent.
   Crocker, J.

delivered the opinion of the Court—Norton, J. concurring.

This Is an action upon an undertaking on appeal. The defendants demurred to the complaint, on the ground that it did not aver any delivery. The complaint avers that the defendants executed the undertaking sued on, copying the same in full into the complaint, with the indorsement thereon, showing that the undertaking was filed in the Clerk’s office on the twenty-seventh day of March, 1862. This is clearly sufficient to entitle the plaintiff" to recover thereon. These undertakings are not required by the statute to be delivered to the obligee when executed, but to be filed in the Clerk’s office, for the use and benefit of the parties entitled to them.

The judgment is therefore affirmed.  