II. There can be no doubt that an indebtedness due from Welsh, for board of himself and sons, was due to the community. Nor coull the husband make a gift to his wife of his interest in what should be paid by Welsh for such board, in the future. He could not give that which he had not yet acquired. A gift is not consummated without delivery; the subject of it must therefore, be in esse: 2 Kent's Com. side p. 438.

But the court below found, and there was evidence to sustain the finding, that, after a settlement, there was found to be due from Welsh for board and and for certain services rendered by plaintiff, the sum of one thousand six hundred and sixty-two dollars, and by mutual understanding and agreement between said plaintiff, her husband and her father, said deed (of the tract last described in the complaint) was made by her father to her," etc. There is no allegation in the answer of any fraud on the part of the husband, or that the property was conveyed to her to defraud his creditors. The averment is that the plaintiff confederated with her father that he should make the conveyance and she receive it, to defraud the father's creditors.

The transaction may be treated as a purchase by the husband; the consideration of the conveyance being an indebtedness due the community. The consent of the husband that the conveyance should be made to the wife, with the intent that it should become her separate property, operated as a gift to her: Higgins v. Higgins, 46 Cal. 259.

The court below found that the conveyance by Welsh to plaintiff was not made with intent to hinder, delay, or defraud defendant Farris or any creditor. The question of fraudulent intent is one of fact and not of law: C. C. 3,442.

There was at least a substantial conflict in the evidence with reference to the intent wherewith the conveyance was made. Judgment and order affirmed.

No. 9,266.

ARATA ET AL. v. TELLURIUM GOLD AND SILVER MINING CO. ET AL.

Department One. Filed June 17. 1884.

MECHANIC'S LIEN-NAME OF OWNER-STATEMENT -The same person may be both the owner and the reputed owner of a building, and a statement in a mechanic's claim of lien that a certain name is the name of the owner of the building on which his work was done, is none the less positive because it is also declared to be the name of the reputed owner.

THE VERIFICATION OF A MECHANIC'S CLAIM OF LIEN, which states that the same “is true” is suficient. The omission to state of the affiant's "own knowledge," is not a defect.

SHAM AND IRRELEVANT ANSWERS-NOTICE OF MOTION TO STRIKE OUT.-Only sham, or irrelevant answers may be stricken out on motion. But where a rule of court requires notie oi every motion not ex parte, it is error to allow such an answer to be stricken out without notice.

FORECLOSURE OF MECHANIC'S LIEN-FORM OF JUDGMENT.-In en action to enforce a rechanic's Fen, a judgment in effect "that the claimant claims the benefit of the low of lensol mechanics and others upon real property, to wit, Chapter 2, Title IV, Part III, of the Code of Civil Procedure," can not be entered by default.

APPEAL from a judgment of the superior court of Amador county, entered in favor of the plaintiffs, in an action to foreclose certain mechanics' liens. The opinion states the fact.

Eagon & Armstrong, for the appellants.

Charles R. Gray and D. B. Spagnoli, for the respondents.

THE COURT. 1. Appellants make the point that the court erred in overruling the demurrer of defendants to the separate complaint of E. A. Ketchum.

Our attention has not been called specially to any defects in the complaint. We can discover no insufliciencies in it such as rendered it subject to general demurrer.

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2. It is said the court below erred in admitting the "claims of lien" of plaintiffs. The statute (sec. 1,187, C. C. P.), requires a claim to contain a "statement of his demand * with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed or to whom he furnished the materials," etc. The "claims" objected to state, "That the Tellurium Gold and Silver Mining Company, a corporation duly organized and existing under the laws of the state of California, is the name of the owner and reputed owner of said premises." Also, "That Isaac Lipman is the name of the agent and superintendent of said mining company, who on or about the 10th day of November, 1882, as such agent and superintendent entered into a contract with said E. A. Ketchum," etc.

The claims complied with the requirements of the law. The same person may be both the owner and reputed owner, and a statement that a name is the name of the owner, is none the less positive because it is also declared to be the name of the reputed owner

3. The appellants contend that the verification to the "claims" is insufficient. Sec. 1,187 C. C. P., provides that a claim must be verified by oath of the claimant or some other person. It does not require that the verification shall be in form like that attached to a pleading; indeed such form would probably not comply with the requirement of the section. The affidavit attached to each claim is that the same "is true." The omission to state "of his own knowledge" is not a defect.

4. At the calling of the term calendar, on the eighth day of June, 1883, this cause was set down for trial on the thirteenth day of July, 1883. But on the day first mentioned counsel for plaintiff Ketchum moved the court, without written notice to defendants, "that the default of the defendants be entered for want of an answer, and that plaintiff take judgment as prayed in the complaint in the action of Ketchum against the defendants." Counsel for defendants appeared and objected specially to the hearing of the motion upon the ground that no writton notice of such motion, or grounds for the same, had been given or served.

A rule of the court required notice of every motion not ex parte. The court overruled the objection and granted the motion.

The codes do not specify the motions which may be heard only on notice, but leave the courts to determine whether each motion requires or does not require notice. It would seem eminently proper that a defendant should have an opportunity to prepare to meet a motion to strike out an answer as slam (false in fact), or irrelevant: C. C. P. 453. We think the court erred in overruling the objection to the want of notice. And the action of the court may have prejudiced defendants' rights. If, at the trial plaintiff had asked for judgment on the pleadings, defendants might have prayed for leave to amend. The order of the court seems to have been based upon the fact that in their answer defendants denied "upon information and belief" certain averments with respect to which they must be supposed to have actual knowledge. No evidence was taken to prove that the denials were false (sham)) and they certainly were not irrelevant. Yet it is only "sham and irrelevant answers" which may be stricken out on motion.

Again: The court struck out the answer, ordered default to be entered and thereupon ordered that "plaintiff take judgment as prayed for in the complaint." The judgment prayed for is: "Wherefore said claimant, Edward A. Ketchum, claims the benefit of the law to liens of mechanics and others upon real property, to wit: Chapter 2, Title IV, Part III of the code of civil procedure." It is quite evident that a judgment in the form prayed for cannot be entered by default.

When the answer was stricken out and default entered, defendants stood in the same position as if they had failed to answer.

There

is no prayer in the complaint for other and further and general relief upon which a court of equity could base an appropriate de

cree.

Judgment reversed and cause remanded for a new trial.

No. 7,660.

LEARNED V. TANGEMAN ET AL.

Department One. Filed June 17, 1884.

A RIPARIAN PROPRIETOR IS NOT ENTITLED TO DIVERT AND USE ALL THE WATERS OF A STREAM, for purposes of irrigation, without regard to the wants or necessities of other riparian proprietors, although the amount so diverted and used was no more than necessary for the irrigation of his land.

APPEAL from a judgment of the superior court for San Joaquin county, entered in favor of the defendants, and from an order denying the plaintiff a new trial. The opinion states the facts.

Bud and Carter, for the appellants.

Baldwin and Campbell, for the respondents.

THE COURT. This is a water contest between two riparian proprietors. The court below instructed the jury that if they believed from the evidence that the defendants were riparian proprietors, and

used the water of the stream for the purpose of irrigating their lands, and used no more than was necessary for that purpose, and returned the urplus water after such use into the channel, then they should return à verdict for the defendants. This was error, for by it the jury was in effect told that the defendants were entitled to divert and use all of the water of the stream, if necessary for the irrigation of their lands, without regard to the wants or necessities of the other riparian proprietor.

Judgment and order reversed and cause remanded for a new trial.

No. 7,762,

LEARNED ET AL v. CASTLE ET AL.

Department One. Filed June 17, 1884.

ABATEMENT OF NUISANCE-JUDGMENT-FINI INGS-VERDICT.-Section 5 of article VI of the constitution confers jurisdiction upon the superior court of actions to prevent or abate a nuisance as a special, and not as an equitable tribunal, with reference to such actions. When therefore, an action to alate a nuisance and for damages, is tried by a jury, the genera verdict:or damages includes a finding in favor of plaintiff upon all the i-sues, and the judgment, besides adjudging damages, may order an abatement of the alleged nuisance. In such action the findings of the jury are not merely advisory upon the court.

SUPERVISORS-ROADMASTER-NUISANCE-ABATEMENT OF.-The board of supervisors of a county can not authorize a roadmaster to do an unlawful act; and their direction to do a lawful act, which operated an injury would constitute no defense to an abatement thereof as a nuisance unless it at least affirmatively appeared that the work could not be done, equally well, in such manner as would not produce the injurious results.

MISJOINDER OF CAUSES OF ACTIONS AND OF PARTIES ARE WAIVED unless objection thereto be taken by demurrer.

NUISANCE-PUBLIC ROAD-PARTIES.-In an action to abate a nuisance caused by the interference of private individuals with a public road, neither the county nor its supervisors are necessary parties. Such county is not responsible for injuries suffered by private parties because it did not restore the road to its former condition.

POSSESSION AS EVIDENCE OF TITLE NUISANCE.-Actual possession of land is evidence, prima facie, of ownership. And one in possession may maintain an action upon a nuisance which injuriously affects his enjoyment of the poss ssion.

INSTRUCTIONS-VERDICT-SPECIAL FINDINGS.-- By section 625, C. C. P., the court is authorized to instruct the jury, if they render a general verdict, to find upon particular questions of fact.

APPEAL from a judgment of the superior court of San Joaquin county, entered in favor of the plaintiffs, in an action to abato a nuisance and for damages caused thereby, and from an order denying the defendants a new trial. The opinion states the facts.

Baldwin, Campbell, Budd and Hall, for the appellants.

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W. L. Dudley and Terry, McKinne & Terry, for the respondents. THE COURT. 1. "The preventive remedy for nuisances, aside from abatement by act of the party, is by injunction issued out of a court of equity.* Now, the only remedy for the abatement of a nuisance, except where specific provision is made therefor by statute, is in a court of equity:" Wood on Law of Nuisances, 679. The injunction may be mandatory, and direct the abatement: 1, 786. Of course, when a statute expressly authorizes a judgment to abate the nuisance in a common law action of tort for a private nuisance

-as in Massachusetts: Codmon v. Evans, 8 Allen, 433-the power of the court to render such a judgment in an action at law, is derived solely from the statute. In this state it was held that the district court had jurisdiction to abate a nuisance, and to decree damages, notwithstanding the former constitution expressly gave like jurisdiction to the county court, because such an action is in equity, and the district courts had jurisdiction in all equity cases: Courtwright v. B. R. & A. W. M, Co. 30 Cal. 573; Yolo county v. Sacramento, 36 Id. 195.

It is insisted by appellant that this is a suit in equity; and so it is, unless, by the present constitution, the superior court has had conferred upon it jurisdiction of such actions, as actions at law, or of their own kind.

Section 5 of Article VI of the constitution defines the jurisdiction of the superior courts. The section confers upon the superior court jurisdiction "in all cases in equity," and then separately, jurisdiction "of actions to prevent or abate a nuisance." This last mentioned clause can be given independent effect only by supposing an intent to confer the power to determine such actions as a tribunal, special, and not equitable, with reference to them. Section 731 of the code of civil procedure, after declaring what things shall constitute nuisances, provides that a nuisance "is the subject of an action. Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance; and by the judgment the nuisance may be enjoined or abated, as well as damages recovered." This section of a code which treats of procedure, would not of itself, authorize any other action than an equitable one, but inasmuch as the constitution gives an action (other than and independently of a bill in equity), the cases which have held that, in any equity suit, a jury may be refused the parties, and that the verdict is advisory only, have no application to such an action. By the code either party is entitled to jury trial, unless a jury has been waived; the right being limited only by the provision of the constitution which confers "equity" jurisdiction on the superior court. And in every case, when the right of trial by jury exists, the verdict. may be general. When, therefore, an action to abate a nuisance and for damages, is tried by jury, the general verdict for damages includes a finding in favor of plaintiff upon all the issues, and the judgment, besides adjudging damages in the amount found by the jury, may order an abatement of the alleged nuisance.

It follows the case at bar did not demand special "findings" by the court, upon all the issues made by the pleadings.

II. There was evidence tending to prove that the "Davis" road was sometimes called the "Lower Sacramento" road. Besides, the complaint was amended by substituting "Davis" for "Lower Sacramento."

III. There is no evidence that the board of supervisors directed the fill to be removed. The supervisors could not authorize the