The respondent moves to dismiss the appeal in this case upon the ground that the same is irregular, and has not been perfected according to law.

It appears that the notice of appeal was filed on the 8th day of February, 1864, and was served on the respondent on the 10th day of the same month, and that the undertaking on appeal was filed one day before the service of the notice. The statute does not authorize or permit the filing of an undertaking before the service of notice, and hence, until the notice has been filed and served, the undertaking has no office to perform. The present case stands, therefore, as if no undertaking had been filed, and the appeal must be dismissed under the rule laid down in Buffendeau v. Edmondson, 24 Cal. 94.

Mr. Justice Sharper, having been of counsel, did not -sit on the trial of this case.