and of everything necessary to maintain the action. A general denial is no longer sufficient. But under the old practice in an action of forcible entry and detainer, all matters of legal excuse, justification, or avoidance could be given in evidence by the defendant, under a general denial of the allegations of the complaint.10

11

§ 3890. Insufficient defense. Proof of prior possession of the premises in controversy does not constitute a defense to this action. The denial that the plaintiff owned the buildings on the premises in controversy does not raise an issue that can be tried in an action of forcible entry and detainer. So new matter pleaded by defendant in respect to the lease of the premises to the plaintiff, its expiration, and the subsequent forcible and fraudulent entry and detainer by the plaintiff, his attempt to place others in possession, and the claim of the defendant against the plaintiff for the rent of the premises, do not constitute a defense to the action. A set-off is not admissible in actions of this class, and it makes no difference whether it is a demand for money or a previous forcible entry of the plaintiff.12

§ 3891. Leave and license. An agreement made by the landlord with the tenant, after the expiration of the lease, that the tenant shall have possession of the premises one year longer, paying therefor a stipulated rent, to be paid if the land is included in a certain survey, vests in the tenant the present right to possess the lands until the expiration of the agreement, and, if pleaded, is admissible in evidence as a defense to an action for holding over, brought before the expiration of the time specified in the agreement.13 It seems that evidence showing the acquiescence of the plaintiff in the defendant's acts is admissible under an answer denying the allegation that the acts

9 Sullivan v. Cary, 17 Cal. 80.

10 Watson v. Whitney, 23 Cal. 375; but see More v. Del Valle, 28 id. 172.

11 Brown v. Perry, 39 Cal. 23.

12 Warburton v. Doble, 38 Cal. 619.

13 Uridias v. Morrell, 25 Cal. 35. In an action for unlawful detainer against a tenant holding over under a written lease, after the expiration of the term, without the consent of the lessor, evidence of a verbal renewal of the written lease is inadmissible, unless the same be pleaded. Perine v. Teague, 66 Cal. 446.

Vol. II 111

were done without consent of the plaintiff, and by force, etc.; but if not, the objection must be taken at the trial, and is not available on appeal.14

§ 3892. Right of possession. If the party guilty of a forcible entry has any title or right of possession, his title or right of possession can not be tried in an action of forcible entry and detainer. He must first deliver up the possession forcibly acquired, and then he may litigate his title or right to possession in a proper action.15 If D. and H. are in the peaceable possession of a lot of land, and S. and S. accompanied by others, their employees, forcibly evict them therefrom and take possession, and then lease the lot to R., who enters into peaceable possession, and five days afterwards D. and H., with others, forcibly dispossess R. and take possession, and R. brings an action for forcible entry against them, D. and H. can not introduce evidence of their prior eviction by S. and S. in defense.16 The person whose occupancy of land is through his servants, and who has never been in possession, can not maintain an action for an unlawful entry made during his temporary absence, and a refusal to surrender possession.17

§ 3893. Title terminated. A tenant may show that his landlord's title has terminated, or that his attornment was made under mistake of fact or fraud.18 If a tenant is evicted by his landlord from a substantial part of the premises, but still continues to occupy the remainder under the lease, the landlord can not, under the Lawful Detainer Act, recover possession from the tenant by reason of nonpayment of rent while the eviction continues.19 The time during which the tenant was to occupy the land must have expired before the demand is made for the possession.20 The fact that the agreement under which the defendant occupies is a verbal one, and that by its terms it was to continue two years, does not change the rule.21 A partner

14 Rowan v. Kelsey, 2 Keyes, 594.

15 Mitchell v. Davis, 23 Cal. 381.

16 Roff v. Duane, 27 Cal. 568.

17 Hammel v. Zobelein, 51 Cal. 532.

18 McDevitt v. Sullivan, 8 Cal. 592; Tewsksbury v. Magraff, 33 id. 237.

19 Skaggs v. Emerson, 50 Cal. 3.

20 Rogers v. Hackett, 49 Cal. 121.

ship between the lessor and lessee in the occupation of the leased property may be proved as a defense to an action by the lessor to recover possession.22

§ 3894. Claim to and possession of. If a complaint in an action to recover judgment for taxes avers that the tax is an assessment of defendants' "claim to and possession of " lands, an answer setting up as new matter that the lands are public lands of the United States contains no defense.23

22 Pico v. Cuyas, 47 Cal. 174.

28 People v. Frisbie, 31 Cal. 146.

PART SIXTH.

PROCEEDINGS TO OBTAIN JURISDICTION.

CHAPTER I.

SUMMONS.

§ 3895. In general. In ordinary terms, a summons is a command to appear. In California it is a notice to defendant that an action has been commenced against him. It informs defendant who has commenced the action, where it is brought, in what court it is brought, the relief demanded, and that, if he fails to answer within ten days, or in such other time, depending upon where the summons is served, default will be taken against him. In California the summons always follows the complaint, and is only issued after the filing of a complaint; but in many states the summons precedes the complaint, and the issuance of it is the first step or commencement of the action; but here the action is commenced by "filing a complaint" in the court where the action is brought. In England all personal actions are brought by one uniform writ of summons, which is issued out of the court where the action is brought, and directed to the defendant, commanding him to cause an appearance to be entered within a certain number of days after the writ is served, formerly eight.2 In California the summons may be issued at any time within one year after filing the complaint.3 Since the amendment of 1860, the clerk is

1 Cal. Code Civ. Pro., § 405. So in Nevada. Civil Prac. Act, § 22. Insolvency proceedings, when commenced. See La Point v. Boulware, 104 Cal. 264. The object of a summons is to put the defendant upon notice of the demand against him, and to bring him into court at the time therein specified. Sweeney v. Schultes, 19 Nev. 53.

23 Steph. Com. 566.

3 Cal. Code Civ. Pro., § 406. The provision of the Colorado statute (Code, § 32), that the complaint must be filed within ten days after the summons is issued, or the action may be dismissed, is not