I concur in the judgment, and in all that is said in the opinion of Mr. Justice Harrison, except that relating to De Witt v. Wright, 57 Cal. *73576. In that case the question as to the proper construction of section 460 of the Code of Civil Procedure was determined after full argument and careful consideration, and I think it should be adhered to, whether it agrees with our views of the section or not. It is a matter of very little importance which of the two constructions is placed upon the statute, but it is desirable for the information and guidance of the pleader, that a construction once made should be adhered to.
The complaint, according to the rule laid down in De Witt v. Wright, 57 Cal. 576, is insuEcient; but the defendant waived the objection and cured the defect by alleging in his answer that he, in speaking to Loheide for the purpose of informing him as to the true character of the plaintiff, said: “ I believe she [meaning the plaintiff] is a thief.” The answer leaves no doubt that whatever was said referred to plaintiff, and that Loheide so understood it.
Rehearing denied.