tion which plaintiff seeks does not consist of damages for false representations, as might be supposed from a cursory reading of the complaint. If that were the case, we should be inclined to doubt whether his claim for such damages would be available in a suit like the present. The averment is, that the defendants agreed to convey the things which plaintiff says he has since found they did not own.

The complaint seems full of contradictions, uncertainties, and ambiguities; but we think it states a cause of action, even after being stripped of some of its averments by the motion to strike out.

2. The respondent objects to the right of appellant to be heard as to the motion to strike out, on the ground that no appeal was taken from the order granting that motion. But such an order is not mentioned among the interlocutory orders which the statute makes the subject of an appeal. Hence it is not itself appealable. It can be reviewed, however, upon appeal from the judgment, as an intermediate order which involves the merits or necessarily affects the judgment. (Code Civ. Proc., sec. 956.) And we think the order was erroneous in several respects.

(a) The plaintiff, after alleging that on the 9th of July he tendered to the defendants a deed of the land which he was to convey to them, proceeded to allege that on the fifteenth of the same month he delivered such deed to their agent, and that said deed was accepted, and that "ever since that date the said defendants have held, and do now hold, said deed and title papers whereby the unencumbered title of said lands and premises of said plaintiff now vests in the said defendants." The court below struck out the allegation as to the delivery on the 15th of July, but left the remainder. This leaves the averments upon the subject in a somewhat unintelligible shape. We think this part of the complaint should have been allowed

remain as it was pleaded. It is true that the tender on the 9th of July might have been sufficient without the rest of it. But the subsequent delivery and acceptance presents a stronger equity. And beside, if it should turn out that the plaintiff is not entitled to enforce the agreement of exchange, he would at least be entitled to a reconreyance of what he conveyed to the defendants. And this relief, we think, should be had in the present action. (b) Paragraph 9 should not have been stricken out. It went to excuse a slight delay on the part of the plaintiff. (See Brown v. Covillaud, 6 Cal. 571; Fowler v. Suthcrland, 68 Cal. 415.) If it be defectively stated, the remedy was by demurrer, and not by motion to strike out. (Jackson v. Lebar, 53 Cal. 258, 259.)

(c) The averment that the property, although standing of record in the name of Nettie C. Burnette, was the community property of both defendants, should not have been stricken out. It went to show that Eugene T. Burnette was properly joined as a defendant.

(d) The averment as to rents and profits should not have been stricken out. If plaintiff shall succeed, he will be entitled to an accounting of the rents and profits upon principles of equity. (See Fry on Specific Performance, sec. 889; Worrall v. Munn, 38 N. Y. 137; Heinlen v. Martin, 53 Cal. 322.) As has been stated, if the averments on the subject are defective, the remedy is not by motion to strike out.

The other matters discussed do not require special notice.

We therefore advise that the judgment and orders be reversed, and the cause remanded for further proceedings in accordance with the above opinion.

FOOTE, C., and BELCHER, C. C., concurred.

The COURT.-For the reasons given in the foregoing opinion, the judgment and orders are reversed, and the cause remanded for further proceedings in accordance therewith.

[No. 11273.

Department Two.-May 28, 1888.]

B. F. BUTE, APPELLANT, v. J. S. POTTS, RESPONDENT.

NEGLIGENCE WANT OF SKILL-ACTION AGAINST PHYSICIAN-EVIDENCE. -In an action against a physician to recover damages for alleged incompetency and negligence, evidence that the defendant had obtained a certificate from the state board of examiners, without an examination as to his qualifications, and upon the presentation of diplomas from certain medical schools which were irregularly obtained, is immaterial and irrelevant in support of the issue of negligence and incompetency.

APPEAL from a judgment of the Superior Court of Santa Clara County.

The facts are stated in the opinion.

Burt & Pfister, for Appellant.

C. D. Wright, and T. H. Laine, for Respondent.

FOOTE, C.-This was an action for damages against a physician and surgeon for alleged incompetency and negligence. Judgment passed for the defendant, and from that the plaintiff appeals.

Upon the trial the plaintiff offered as evidence (to support his contention that the defendant was an incompetent physician and surgeon) that the latter had obtained a certificate from the state board of examiners without an examination as to his qualifications, and that his certificate was issued "upon the presentation of two diplomas" from certain medical schools, which were irregularly obtained. He also desired to show by a wit ness what the defendant said about his diploma.

The court excluded the evidence, the plaintiff excepted, and now claims that the action of the court was

neous.

erro

The case was presented upon the theory that the party sued had been guilty of negligence, and lacked skill as a physician and surgeon. The fact that he had or had

not certificates and diplomas as a physician and surgeon is no proof either that he had skill as such or lacked it.

A certificate or diploma could be no proof that he acted with skill in attending a given patient. or that he did not so act. His services as to skill or the contrary must be determined by his acts and conduct in attending the patient. It is the manner in which the services are performed that is the test of their character.

The evidence was immaterial and irrelevant, and the judgment should be affirmed.

BELCHER, C. C., and HAYNE, C., concurred.

The COURT.-For the reasons given in the foregoing opinion, the judgment is affirmed.

[No. 11345. Department Two.-May 28, 1888.] JOSHUA HENDY MACHINE WORKS, APPELLANT, v. PATRICK CONNOLLY, RESPONDEnt.

SALE-OWNERSHIP-WANt of Change OF POSSESSION-FINDINGS.-The action was brought by an alleged vendee of personal property to recover the possession thereof from a sheriff who had taken it under a writ of attachment against the vendor. The answer denied the allegations of the complaint as to the plaintiff's ownership and possession, and averred that the property belonged to the attachment debtor at the date of the levy, and that the sale to the plaintiff was fraudulent because made for the purpose of defrauding creditors. The main question on the trial was, whether the sale had been accompanied by an immediate delivery and actual and continued change of possession. The court did not specifically find that the sale to the plaintiff was fraudulent, or that the vendor was the owner of the property at the date of the attachment, but it did find that the plaintiff was not the owner. Held, that the findings were sufficient to sustain a judgment for the defendant.

ID. EVIDENCE OF INDEBTEDNESS-JUDGMENT ROLL IN ATTACHMENT SUIT. In such an action, the judgment roll in the attachment suit, if admitted without objection, is sufficient evidence to show an indebtedness to the attaching creditor which antedated the sale to the plaintiff, and justified the issuance of the writ and seizure of the property.

LXXVI. CAL.-20

APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.

The facts are stated in the opinion.

W. H. H. Hart, and Aylett R. Cotton, for Appellant.

Royce & Cummins, for Respondent.

BELCHER, C. C.-This is an action to recover the possession or value of a steam-boiler. The plaintiff asserts title to the boiler under a bill of sale made by one Alexander McDaid on the fourteenth day of August, 1883, and under a bill of sale made to McDaid by one John Mason on the eighth day of the same month. It is alleged in the complaint that on the fourteenth day of August, 1883, the plaintiff was and ever since has been the owner of the boiler, and that on the eighteenth day of that month the defendant wrongfully took the same from the possession of plaintiff. The answer denies that the plaintiff was, at the time named in the complaint, or ever at any time, the owner of the boiler, or that defendant wrongfully, or at all, took it from the possession of plaintiff; and alleges that it was the property and in the possession of John Mason, and that defendant, as sheriff of the city and county of San Francisco, under a writ of attachment duly issued against Mason, seized and took it from the possession of Mason on the seventeenth day of August, 1883. The answer further alleges that the plaintiffs' claim of title to the boiler was under a sham, fictitious, fraudulent, and void transfer from Mason, made for the purpose of hindering, delaying, and defrauding his creditors.

The court below found that the plaintiff was not the owner of the boiler on the fourteenth day of August, 1883, nor at any time prior to the commencement of