Approved in Ward v. Ward, 59 Cal. 141, defective notice in summons; so in Sawyer v. Robertson, 11 Mont. 421; Smith v. Aurich, 6 Colo. 392, summons not sufficiently stating nature of cause of action; Black v. Clendenin, 3 Mont. 48, a subpoena in chancery held not a summons within the terms of the Civil Practice Act; Schuttler v. King, 12 Mont. 161, dissenting opinion of De Witt, J.; Sharman v. Huot, 20 Mont. 557, holding that without the signature of the clerk there is no summons; White v. Johnson, 27 Oreg. 294, 50 Am. St. Rep. 733, omission of name of party. Distinguished in Bewick v. Muir, 83 Cal. 369, where a more liberal construction is contended for, and holding that a summons is sufficient if it states the nature of the action in general terms. So, to same effect, in People v. Dodge, 104 Cal. 491; Ralph v. Lomer, 3 Wash. 405; and Schuttler v. King, 12 Mont. 158.

Defendant may appear for special purpose of moving to dismiss a defective summons, and if the motion is denied, a general appearance afterward and an answer do not waive the right or cure the error, p. 635.

Approved in Kent v. West, 50 Cal. 186; Arroyo, etc. Water Co. v. Superior Court, 92 Cal. 52; 27 Am. St. Rep. 94; Black v. Clendenin, 3 Mont. 49; Miner v. Francis, 3 N. Dak. 553; Kinkade v. Myers, 17 Oreg. 472; Sealey v. California Lumber Co., 19 Oreg. 95; Benedict v. Johnson, 4 S. Dak. 392; and Lung Chung v. Railway Co., 10 Saw. 20, 19 Fed. Rep. 256. Disapproved in Union Pac. Ry. Co. v. De Busk, 12 Colo. 297; 13 Am. St. Rep. 223. Cited in McDonald v. Agnew, 122 Cal. 450, but denying prohibition to review irregularities in service and return of summons; overruled in In re Clarke, 125 Cal. 392, noted under Deidesheimer v. Brown, 8 Cal. 340.

44 Cal. 635-637. FORD v. DOYLE.

Res Adjudicata.-Doctrine of, in its strict sense, does not apply to motions made in the course of practice, and the court may allow a removal in its discretion, p. 637.

Approved in Bowers v. Cherokee Bob, 46 Cal. 285; Reed v. Allison, 54 Cal. 490, as authority that a motion renewed without leave of court would be a sufficient ground for the denial thereof. So, in Tyrrell v. Baldwin, 78 Cal. 472; Kenney v. Kelleher, 63 Cal. 444, holding that leave to renew may be granted by the judge at chambers; Johnston v. Brown, 115 Cal. 697, in approval. So, to same effect in Wallace v. Lewis, 9 Mont. 403, and Jensen v. Barbour, 12 Mont. 575. Cited in Commissioners v. McIntosh, 30 Kan. 235, and the rule as stated held to be relaxed in Kansas; Bank v. Jennings, 4 N. Dak. 236, as to the necessity of diligence in sustaining motion and obtaining leave of court to renew it.

Legal Tender.-County bonds, made payable in money generally, may be paid in legal tender notes, p. 640.

Cited in 87 Am. Dec. 125, extended note, collecting the authorities on the subject.

44 Cal. 641-645. RUSSELL v. KELLEY.

13 Am. Rep. 169.

In Action for Libel oral testimony is admissible to show the application of the alleged libel to the plaintiff, p. 645.

Cited in Hearne v. De Young, 119 Cal. 679, but holding evidence inadmissible of deductions drawn by witnesses on reading the alleged libel, when unambiguous and in ordinary language; Nidiver v. Hall, 67 Cal. 83, action for slander, and holding that the testimony of hearers as to how they understood the alleged slanderous words, is admissible. So, in Lewis v. Humphries, 64 Mo. App. 471; ruling approved, Harris v. Zanone, 93 Cal. 66; Finnegan v. Detroit Free Press, 78 Mich. 680; State v. Mason, 26 Oreg. 275; 46 Am. St. Rep. 630; and People v. Ritchie, 12 Utah, 189. Cited in notes to 4 Am. Dec. 354; 52 Am. Dec. 771; and 53 Am. St. Rep. 700, as authority sustaining the doctrine.

44 Cal. 646-648. CAMPBELL v. WEST.

Adverse Possession.-Right to maintain water ditch over the lands of another can be acquired by adverse user, p. 648.

Approved in Alhambra, etc. Water Co. v. Richardson, 72 Cal. 601; and cited, to the same effect, in 11 Am. Dec. 663, note.

VOLUME XLV.

By ALBERT RAYMOND.

Revised to include citations to Volume 147, by CHARLES L. THOMPSON.

Writ of Mandate in matter involving public cannot be applied for by private citizen who shows no special interest or injury, p. 7.

Cited to same effect in Fritts v. Charles, 145 Cal. 513, denying mandamus to compel arrest of person accused by applicant before justice of peace, of misdemeanor in unlawfully using slot machine; Marini v. Graham, 67 Cal. 133, denying right of private citizen under like circumstances to sue for abatement of public nuisance; Ashe v. Board, 71 Cal. 238, denying right to writ of review to annul order of supervisors granting use of highway for steam railroad. Distinguished in Maxwell v. Supervisors, 53 Cal. 392, granting certiorari to taxpayer to annul order making printing contract; and held to have been overruled by this and other cases in Eby v. School Trustees, 87 Cal. 174, 175, 176, (but see 177), granting mandamus to taxpayer to compel school trustees to locate schoolhouse as determined upon by electors; and see Frederick v. San Luis Obispo, 118 Cal. 392, granting writ for call of election, on petition of "property owner and taxpayer"; State's Attorney v. Selectmen, 59 Conn. 409, granting writ under local statutes to state's attorney to compel selectmen to repair highway; State v. Gracey, 11 Nev. 229, granting writ to taxpayer to compel county officers to collect taxes; Smith v. Lawrence, 2 S. Dak. 193, granting writ to candidate against board of election canvassers. Denied in State v. Commissioners, 21 Mont. 474, and held overruled by Eby v. Trustees, 87 Cal. 174.

45 Cal. 8-10. LOVENSOHN v. WARD.

Claim and Delivery.-Answer cannot set up cause of action relating to property other than that described in complaint, p. 10.

Cited to same effect in Hall v. Susskind, 109 Cal. 206, 209, holding improper a plea in abatement concerning such other property; Wigmore v. Buell, 116 Cal. 97, holding claim for damages by cattle to defendant's land not proper counterclaim in action in ejectment for contiguous land; Miser v. O'Shea, 37 Or. 234, 82 Am. St. Rep. 753, denying right to set up independent trespass as a counterclaim.

45 Cal. 12-15.

PLACER COUNTY v. DICKERSON.

Sureties on Official Bond are liable for all moneys received until office actually transferred, p. 15.

Cited to same effect in Lynn v. Mayor, 77 Md. 455, as to defalcation during second term, although incumbent failed to again qualify; State v. Ransom, 73 Mo. 92, on point that "term of office" extends till election and qualification of successor; Union Society v. Mitchell, 26 Mo. App. 212, on same point, and holding sureties liable for officer in private corporation, and, further, as to right to trace trust funds; Baker City v. Murphy, 30 Oreg. 416, as to defalcation while holding over; State v. Wells, 61 Tex. 563, holding sureties liable after withdrawal until bond of new sureties approved by state controller. Distinguished in Fresno etc. Co. v. Allen, 67 Cal. 510, holding sureties of officer of private corporation not liable for defalcations after reappointment; and on same point, Harris v. Babbitt, 4 Dill. 192, 11 Fed. Cas. 614, as to bank cashier; King County v. Ferry, 5 Wash. 555, 34 Am. St. Rep. 896, ruling similarly when legislature has extended term during incumbency. Cited also, in note on general subject to Crawn v. Commonwealth, 10 Am. St. Rep. 856.

Action on Official Bond is for breach of the contract and is on the written instrument, p. 14.

Denied in County v. Hall, 132 Cal. 590, 591, holding liability thereon one created by statute and action barred in three years. Distinguished in Oregon v. Davis, 42 Or. 36, an action on official bond for defalcation is barred in six years.

Receipts of County Treasurer are prima facie evidence to charge his sureties, p. 15.

Cited to same effect in People v. Huson, 78 Cal. 158, as to receipts given by wharfinger; Keowne v. Love, 65 Tex. 158, applying rule to declarations of administrator. Cited, also, in note to Crawn v. Commonwealth, 10 Am. St. Rep. 847, on liability of sureties on official bonds.

45 Cal. 16-17. THURSTON v. ALVA.

Sale by Pre-emptioner is valid after certificate of purchase though before patent, p. 17.

Cited to same effect in Hudson v. Johnson, 45 Cal. 25, holding illegal, however, contract of sale before entry; Witcher v. Conklin, 84 Cal. 504, on point that transfer of land and delivery of certificate is sufficient evidence of assignment of latter.

45 Cal. 18-19. DORLAND v. McGLYNN.

Motion to Restore Appeal.-Affidavit must show that substantial errors exist in record, p. 19.

Cited to same effect in Lightle v. Ivancovich, 10 Nev. 43, denying motion for insufficiency of affidavit.

Statements of Accomplice are not admissible when made extra-judicially and outside of defendant's presence and after the alleged joint act, p. 21.

Cited to same effect in People v. Opie, 123 Cal. 296, and State v. Hinkle, 33 Or. 98, reversing convictions for admissions of such evidence; People v. Stanley, 47 Cal. 118, 17 Am. Rep. 403, as to flight of accomplice after attempt at robbery; People v. Irwin, 77 Cal 505, as to statement made before alleged conspiracy to murder; People v. Oldham, 111 Cal. 653, as to extrajudicial statements after act; State v. Callahan, 47 La. Ann. 482, rejecting evidence as to veracity of accomplice; State v. English, 14 Mont. 404, as to confessions after act; State v. Jarvis, 18 Oreg. 365, as to evidence of prosecuting witness in case of incest; Preston v. State, 4 Tex. App. 199, as to threats by accomplice against deceased, where no conspiracy proved.

45 Cal. 21-25. HUDSON v. JOHNSON.

Pre-emption.-Contract to pre-empt public lands and sell same is void,

p. 25.

Cited to same effect in Turner v. Donnelly, 70 Cal. 604, as to agreement by settlers on unsurveyed land, different subdivisions, to make reciprocal conveyances after survey and patents.

Bill of Exceptions is most strongly construed against party presenting it, p. 27.

Cited to same effect in dissenting opinion in People v. Stanley, 47 Cal. 120, main opinion holding error in admission in testimony presumed prejudicial unless contrary appears; People v. Brotherton, 47 Cal. 405, on point that error as to exclusion of testimony must be affirmatively shown; People v. Marks, 72 Cal. 47, ruling similarly as to proof of venue; People v. Huff, 72 Cal. 119, as to regularity of view of premises by jury; People v. Leong Sing, 77 Cal. 119, as to identity between two names borne by murdered man; People v. Gibson, 106 Cal. 472, as to variance in instruction as shown in bill and judgment-roll; State v. Shepphard, 23 Mont. 324, holding insufficiency of evidence not reviewable unless bill purports to contain all the evidence introduced; State v. Perry, 4 Idaho, 243, following rule; Olson v. Oregon etc. R. R., 24 Utah, 471, applying rule in action for personal injuries; dissenting opinion in People v. Coulter, 145 Cal. 78, majority holding where bill of exceptions purports only to state evidence directed solely to time