ants, who are appellants here, for three thousand dollars and interest at ten per cent per annum from date of note, viz., July 7, 1893. The note fell due November 1, 1893. The complaint is in the usual form upon a promissory note.

An answer was filed by defendants, to which plaintiff demurred, and also moved to strike out portions thereof.

The motion to strike out was granted and the demurrer sustained; defendants declining to amend their answer, their default was entered, and judgment rendered in favor of plaintiff in consouance with the prayer of his complaint.

The appeal is from the final judgment, and the sufficiency of the answer as against the demurrer thereto, and the motion to strike out, are the only questions involved in the appeal.

We epitomize in part and quote the residue of the answer as follows: 1. Defendants admit the making of the note to John Eich as payee; 2. Aver that it was indorsed after maturity; 3. Deny there was any consideration for the note beyond two thousand dollars; 4. "The defendants aver that the payee of said note, John Eich, is, and was, before the indorsement of said note, indebted to the defendants for and on account of said note, and the consideration thereof, and as an offset thereto, in the sum of one thousand dollars for money paid, laid out, and expended for and on account of said John Eich, payee of said note, by defendants, at his special instance and request, for labor done and performed for said John Eich while he was the owner and holder of said note, and before the same became due, and which sum of one thousand dollars was, and is, an offset and payment on account of said note; that the said John Eich has not paid the same, though demand has been made on him therefor"; 5. Aver that they paid on account of said note one thousand dollars before the transfer thereof to plaintiff, of which said plaintiff had notice before he received the note; 6. The transfer to plaintiff was without consideration, and was made with

the fraudulent intent on the part of the payee and plaintiff of defrauding the defendants out of said sum of one thousand dollars; 7. The plaintiff is the son of John Eich, payee of said note.

The following is the portion of the answer stricken out by the court: "That for the further purpose of defrauding the defendants out of said sum of one thousand dollars, the said John Eich has transferred all his other property to his daughters, and the said son, the plaintiff, John H. Eich; that said John H. Eich, the plaintiff, was and is a party to all of said fraudulent transfers and transactions, was well aware of the fraudulent intent which induced said transfers, all of which were done by said John Eich and the plaintiff with intent to defraud the defendants out of said one thousand dollars; that said John Eich is now insolvent by reason of said fraudulent transfers of his property, and is unable to respond in said sum of one thousand dollars, and, unless the same be credited on said note, defendants will lose the same." We think the motion to strike out was properly granted.

1. The answer admitted the making of the note, and on the showing of defendants themselves there was an amount due thereon at least sufficient to cover all their cross-demands. This being so, it was entirely immaterial to them, or to their case, whether or not plaintiff and the payee of the note had procured a fraudulent. transfer of all or any part of the property of the latter. It was an irrelevant matter, having no office to fill, and hence no proper place in the pleading, and was therefore properly stricken out under section 453 of the Code of Civil Procedure.

2. We are of opinion the demurrer was improperly sustained. It was to the whole answer. That portion of it constituting a counter-claim was fatally defective, and liable to all the objections urged against it by the demurrer, for the reason that it mingles together in one cause of action sundry causes which might have been severally pleaded under the practice permitting the

common counts to be pleaded. Under the Hilary rules of the English courts all of the common counts could be united in a single count, but such a practice is not permitted under our code, and the result of the effort so to do, in the present case, leaves the pleading ambiguous, unintelligible, and uncertain. Still, the plea of payment of one thousand dollars on the note before its indorsement to plaintiff, with notice thereof to the latter, coupled with the denial that it was indorsed before maturity, and the allegation that the transfer of the note was without consideration, constituted, pro tanto, a valid defense to the action.

We recommend that the judgment be reversed, and the cause remanded, with leave to the defendants to amend their answer if they shall be so advised.

BRITT, C., and HAYNES, C., concurred.

For the reasons given in the foregoing opinion the judgment is reversed and the cause remanded with leave to the defendants to amend their answer.

MCFARLAND, J., TEMPLE, J., HENSHAW, J.

[Sac. No. 82. Department Two.-March 28, 1896.] GEORGE N. HOLLY, RESPONDENT, v. WILLIAM HEISKELL, APPELLANT.

CLAIM AND DELIVERY-PLEADING-OWNERSHIP AT TIME OF SUIT BROUGHT. A complaint in an action of claim and delivery of personal property, must show the ultimate fact that plaintiff was the owner or entitled to the possession of the property at the time of the commencement of the action; and it is not sufficient to aver that he was the owner or entitled to possession at some period prior to that time. ID. INSUFFICIENCY OF COMPLAINT OBJECTION UPON APPEAL.-The objec tion that the complaint of the plaintiff does not state facts sufficient to constitute a cause of action, may be taken at any time, and be taken for the first time upon appeal from the judgment.

APPEAL from a judgment of the Superior Court of Fresno County. STANTON L. CARTER, Judge.

The facts are stated in the opinion of the court.

E. D. Edwards, for Appellant.

The complaint was insufficient in failing to state that plaintiff was owner at the time his action was brought. (Fredericks v. Tracy, 98 Cal. 658.)

Strother & Strother, for Respondent.

The most that can be said against the complaint, after judgment, is that the allegation of title was argumentative, and this should have been reached by special demurrer or motion. (Visher v. Smith, 91 Cal. 260.)

MCFARLAND, J.-This is an appeal by defendant, upon the judgment-roll, from a judgment in favor of plaintiff. The action is claim and delivery.

Appellant contends that the judgment must be reversed because there is no averment in the complaint that respondent was the owner, or entitled to the possession, of the property sued for at the time the action. was brought; and, under the authorities, the contention must be sustained. In a suit to recover personal property the complaint must show the ultimate fact that plaintiff was the owner or entitled to possession at the time of the commencement of the action; and it is not sufficient to merely aver that he was the owner or entitled to possession at some period prior to that time. It was so expressly held in Fredericks v. Tracy, 98 Cal. 658; Affierbach v. McGovern, 79 Cal. 269, and Masterson v. Clark (Cal.), 41 Pac. Rep. 796, and the two first-named cases were referred to approvingly in the still more recent case of Williams v. Ashe, 111 Cal. 180. Counsel for respondent seek to show us a distinction between those cases and the case at bar, but we are not able to see it. In Affierbach v. McGovern, supra, there was no demurrer to the complaint. In the case at bar the only averment of the respondent's ownership or right of possession is "that on the twenty-second day of April, 1895, plaintiff was the owner and entitled to

the possession of the following described personal property, to wit"; and the action was not commenced until after the said twenty-second day of April. Under the authorities above cited the complaint does not state facts sufficient to constitute a cause of action; and, of course, that objection can be taken at any time.

The judgment appealed from is reversed and the cause remanded with directions to the court below to allow respondent to amend his complaint, if he shall be so advised.

GAROUTTE, J., and HENSHAW, J., concurred.

[Sac. No. 60. Department One.-March 28, 1896.]

IN THE MATTER OF THE ESTATE OF JOSEPH BYRNE, DECEASED

ESTATES OF DECEASED PERSONS-SALE OF REAL ESTATE-PATENT TO MINERAL LAND-SUFFICIENCY OF PETITION-CONSTRUCTION OF CODE.-A tract of land, for which a mineral patent has been issued, and of which the deceased was the owner in fee simple, and upon which no mining has been done for series of years, cannot be summarily sold as a mine or mining interest under sections 1529-33 of the Code of Civil Procedure, and can only be sold under a petition stating the facts required for the sale of real estate under section 1537 of the same code; and a petition not stating such facts cannot support an order of sale of such tract.

APPEAL from an order of the Superior Court of Placer County directing the sale of real estate. J. E. PREWETT, Judge.

The facts are stated in the opinion of the court.

W. B. Lardner, and George B. Merrill, for Appellant.

The court had no power to grant the petition, as the administration of the estate was intrusted to the administratrix, and is to be administered according to her discretion within certain limitations. (Code Civ. Proc., secs. 1529-33.) The petition is insufficient to give the court jurisdiction to make the order of sale, as the de