Fox

After hearing in Bank and further consideration of the case, we are satisfied with the con *344 elusion reached in Department One, and • with the opinion there delivered by Mr. Justice Paterson.

The matters upon which the plaintiffs rely to relieve them from the bar of the statute of limitations may be deemed to have been pleaded in answer to the affirmative matters alleged in the answers of the defendants. There being no replication, such affirmative matters are taken as controverted. (Code Civ. Proc., sec. 462.)

The judgment and order are reversed, and the cause remanded for a new trial.

The following is the opinion above referred to, rendered in Department One on the 12th of August, 1890: —

Charles J. Fox was associated in business with G. H. Tay, Henry Brooks, and Oscar Backus, in San Francisco, up to the time of his death, which occurred in June, 1870. In his last will and testament he appointed the plaintiffs, A. J. Fox, Enoch Ketcham, and G. H. Tay, his executors. They all appeared before the surrogate of Union County, New Jersey, where Fox-resided and died, and qualified as executors. An inventory was made out, signed, and filed by Fox and Ketcham in April, 1872, in…