Billings v. Drew

Citations

• 52 Cal. 565

Syllabus

<p>Pleading.—Inconsistent defenses may be set up. New Matter.—A party does not waive the effect of a denial contained in one portion of his answer by setting up, in the appropriate manner, new or affirmative matter.</p> <p>Instructions.—Where the defendant in an action to recover the possession of personal property, in addition to denying plaintiff’s ownership, right of possession, etc., sets up, by way of affirmative defense, that the property was attached by him as Sheriff, and is now claimed by the plaintiff under a pretended and fraudulent sale, made for the purpose of hindering and delaying creditors of the attachment debtor: Mid, that an instruction to the effect that unless the defendant proved by a preponderance of evidence that the alleged pretended sale was in fact fraudulent, they should find a verdict for the plaintiff, was erroneous, in that it ignored the effect of the other denials of the answer.</p>