McDermott

This is an action to recover damages for slander. The complaint was filed in the superior *422 court of San Mateo County on the twenty-eighth day of March, 1887. The summons was issued on the 18th of February, 1888, and on that day the plaintiff filed a written undertaking in the sum of five hundred dollars to meet the requirements of the “act concerning actions for libel and slander ” passed March 23, 1872. (Stats. 1871-72, p. 533.) The undertaking was executed in the city and county of San Francisco, and in the affidavit annexed thereto each of the sureties stated that he was “ a resident and freeholder within the state of California.” As a matter of fact, each of the sureties was a resident of the city and county of San Francisco.

On the 29th of February, 1888, “ and within the time allowed by law,” the defendant gave notice to the plaintiff that he excepted to the sureties, and each of them, and that he required them to appear before the judge of the superior court of San Mateo County, at a specified time and place, to justify as such sureties, as prescribed by section 3 of the act of 1872.

At the time and place named, the two sureties appeared before the said judge, and…