Pleading—Demurrers to Complaint—Cause of Action—Disallowance of Amendment—Abuse of Discretion.—If a complaint states a cause of action, it is an abuse of discretion, apparent upon the face of the record, to sustain demurrers thereto on any ground without granting leave to amend. The fact that the complaint had been once before amended does not justify a refusal of leave to amend in such case.

Id.—Refusal of Leave in Order Sustaining Demurrers—Presumption —Exception—Review upon Appeal.—Where the order refusing leave to amend a complaint stating a cause of action was inserted in the order sustaining demurrers thereto, it cannot be presumed that the plaintiff asked leave to amend in advance of the ruling. The order is deemed excepted to by force of the statute, and the plaintiff is not required to move to vacate or modify it in order to have the abuse of discretion reviewed upon appeal.

Id.—Demurrer for Ambiguity and Uncertainty—Amendment Contemplated.—A demurrer for ambiguity and uncertainty is in aid of the pleading, and contemplates an amendment- in the particulars specified, unless, after several failures, it becomes evident that there, is a want of facts, or that the fault cannot be remedied.

Id.—Uncertainty as to Facts within Defendant’s Knowledge-Demurrer Improperly Sustained.—Where no uncertainty appears other than as to facts within the knowledge of the defendants, they cannot complain thereof, and a demurrer for such uncertainty should not be sustained;

Id.—Action for Accounting—Sufficiency of Complaint—Interest in Inventions—Transfer of Corporate Bights—Issuance of Stock—Parties.—In an action for an accounting, to which two corporations and the stockholders of the first named were made parties defendant, a complaint showing that plaintiffs contracted with the first-named corporation to assign to it all patents and improvements upon machines invented by plaintiff, reserving a percentage upon all profits realized outside of the city and county of San Francisco, and that such corporation, in fraud of the plaintiff’s rights, had transferred to the other corporation all of its property and all rights in such patents and improvements without reserve, to be used anywhere without limitation as to place, the sole consideration of which was the issuance of stock in the other corporation to certain named stockholders of the first-named corporation, states a cause of action for an accounting against the first-named corporation, to which such ' named stockholders and the other corporation were properly made parties defendant.

Id.—Stockholders Improperly Joined as Parties—Dismissal.—Other stockholders of the first-named corporation, who received no part of the fund to which the plaintiff must look and to which he has a right to resort for the satisfaction of what may be found due upon the accounting, are not proper parties defendant, and the action should he dismissed as to them.

Id.—Illegal Transfer of Eights—Division of Corporate Assets to Stockholders.—The transfer by a subsisting corporation of all its property and assets of every kind to another corporation in sole consideration of the issuance of the stock of the latter to stockholders of the former, is, in effect, an attempted distribution to them of all of the property and assets of the corporation making such transfer, in violation of positive statute law.

Id.—Liability upon Accounting—Notice of Plaintiff’s Eights.— Where it appears that both the corporation which took the transfer and the.stockholders of the corporation which made it had notice of the rights of the plaintiff under the contract with the latter, they took their interests subject to any liability which may be found to exist against the corporation making the illegal transfer, upon an accounting with it under the contract. If the stockholders who received the consideration cannot make such liability good, the other corporation, which connived at the diversion of the fund applicable to pay the plaintiff’s claim, ought to make it good.

Id.—Cause of Action for Accounting—Fiduciary Eelation.—The patents and improvements assigned to the first-named corporation by the plaintiff, reserving an interest in certain profits which might be realized by the corporation, created a fiduciary relation, and rendered the corporation a trustee of the plaintiff as to his share of the profits realized; and he is entitled to an accounting thereof.

Id.—Estoppel of Corporation.■—Such corporation, having transferred all of its property, and authorized the delivery of the proceeds of the sales to its stockholders, in violation of the statute, will not be heard to say that it received nothing for which it should account.