Irish

This action was brought against the stockholders of a corporation by plaintiff as assignee of certain claims of creditors. In the complaint, after setting out the debt of each creditor, and after an averment that the debt is still due and unpaid, plaintiff avers: “That said claim was duly assigned to this plaintiff before the commencement of this action,” but it is not averred that he is still the owner of the assigned claim. The complaint was not demurred to, but appellant in this court for the first time objects that the complaint in that respect fails to state a cause of action, and Holly v. Heiskell, 112 Cal. 174 , is relied upon as authority.

That was an action of “claim and delivery,” and it was held that the complaint must show that the plaintiff was entitled to the possession at the time of the commencement of the action; and it was said: “It is not sufficient to merely aver that he was the owner or entitled to the possession at some period prior to *310 that time.” Williams v. Ashe, 111 Cal. 180 , is referred to. In that case the averment was to the effect that “on and after a day named plaintiff was the owner,” et cetera. The case of Affierbach v. McGovern, 79 Cal. 268…