ADVERSE POSSESSION (Continued). OF TITLE.—Where two brothers owned adjoining quarter sections of patented land of little value, and neither lived nor resided upon the land covered by his patent for any long period after obtaining it, and neither had lived on any part of the half section for many years, the fact that one of the brothers inclosed both holdings with a wire fence, and leased the land for short periods for grazing purposes unknown to the other brother, is insufficient to sustain a claim to the whole tract by adverse possession. (Gallo v. Gallo, 189.) 2. HOSTILE CHARACTER OF HOLDING ESSENTIAL ELEMENT.-In order to make out an adverse possession sufficient to constitute a defense under the statute of limitations, the owner must be notified in some way that the possession is hostile to his claim. (Id.) 3. PAYMENT OF TAXES-REDEMPTION FROM TAX SALES-INSUFFICIENT COMPLIANCE WITH STATUTE.-The payment of taxes required as an element of adverse possession is not complied with by the redemption of the land from tax sales. (Id.) 4. EJECTMENT-FINDINGS-LACK OF INCONSISTENCY.-In an action in ejectment, wherein the plaintiff alleges seisin or right of possession in itself for the period of five years last past, and also alleges possession on the part of the defendants at the time of the commencement of the action, and the answer of the defendants denies the plaintiff's possession and right of possession for the period claimed, and alleges that the defendants have been in the adverse possession of the premises for more than twelve years, there is no inconsistency between the finding of the plaintiff's seisin within five years and of the defendants' adverse possession for the period of twelve years prior to the filing of the complaint, nor is the latter finding sufficient to bar the plaintiff's recovery under section 318 of the Code of Civil Procedure, where it is also found that the defendants had not paid the taxes for the requisite years. (People's Water Company v. Boromeo, 270.) 5. FAILURE TO PAY TAXES-INVALIDITY OF ASSESSMENTS-BURDEN OF PROOF.-Where in such an action it is admitted that the taxes levied and assessed for the years in question were not paid, and it is contended that the assessments were invalid, the burden is upon the defendants to show such invalidity. (Id.) - OMISSION NOT 6. COMPUTATION AND ENTRY OF TAXES BY AUDITOR FATAL.-A tax assessment is not invalid by reason of the failure of the county auditor to comply with section 3731 of the Political Code, which requires him, after receiving from the state board of equalization a statement of whatever changes have been ordered by said board in the assessment-book of the county, and after making the corresponding changes, if any, in said assessment-book, to then compute and enter in a separate money column in the assessment ADVERSE POSSESSION (Continued). book the respective sums to be paid as a tax on the property, and segregate and place in their proper columns of the book the respective amounts due in installments, as such work is no part of the levy, but is merely a step in the process of the collection of taxes. (Id.) 7. QUIETING TITLE-EVIDENCE-BURDEN OF PROOF. In an action to quiet title to real property in which the defendants claim title by adverse possession and also under a purported tax sale, where the record title to the land is shown to be in the plaintiff, presumptively he was seised of the possession within the time required by law, and the burden is upon the defendants to show that they or either of them, having color of title to the land, had held and possessed the same against the plaintiff for the full statutory period of five years preceding the commencement of the action. (Cory v. Hotchkiss, 443.) 8. ABSENCE OF RECORD TITLE-ESSENTIALS OF ADVERSE POSSESSION.One who does not connect himself with a record title cannot be said to have had possession of land under color of title, and therefore, in order to establish a claim of adverse possession, it is incumbent upon him to show compliance with the provisions of section 325 of the Code of Civil Procedure, viz., (1) that the land had been protected by a substantial inclosure; or (2) that it had been cultivated and improved during his alleged use and occupation of the same, and, failing in this, his claim fails. (Id.) 9. CLAIM UNDER COLOR OF TITLE-ABSENCE OF POSSESSION.-Where it does not appear that one claiming land under a tax deed at any time personally or otherwise occupied and used the land, or that he did anything with reference to the same after receiving the deed save to pay the taxes thereon, he cannot sustain a claim of adverse possession. (Id.) 10. LEASING OF LAND-FAILURE TO SHOW EXCLUSIVE USE.-The mere fact that one of the defendants assumed the ownership of the land and leased the same to another may be some evidence that it was his intent to claim the land, but where he fails to show that it was occupied by his lessee for the statutory period, or that it was not used by plaintiff or other persons during that time, his mere intent to claim the land is insufficient to support a claim of title by adverse possession. (Id.) 11. JOINT CLAIM OF ADVERSE POSSESSION-INSUFFICIENCY OF EVIDENCE. Where it is alleged in the cross-complaint in an action to quiet title to land that the title was conveyed by the holder of a tax deed to one of the defendants (who the evidence does not show ever had possession of the land), for the benefit of himself and the other defendant (who leased the land for grazing purposes), the latter cannot ADVERSE POSSESSION (Continued). be said to have connected himself with the purported title of his codefendant, there being no evidence that he was acting for his codefendant or for himself and the latter jointly. (Id.) AFFIDAVIT OF MERITS. See Place of Trial. AGENCY. See Brokers; Sale, 4, 5. ALIBI. See Criminal Law, 10, 23, 55. ANTENUPTIAL AGREEMENT. See Insurance, 2-5. 1. MANDAMUS-ACTION TO COMPEL SHERIFF TO DELIVER PERSONAL PROPERTY-EXECUTION NOT STAYED.-An order of the superior court requiring a sheriff to take into his possession and deliver to the petitioner certain personal property and documents is not stayed by the mere fact of perfecting an appeal from the judgment therein, under the alternative method of appeal, without giving the stay bond provided in section 943 of the Code of Civil Procedure. (Bailey v. Superior Court, 78.) 2. DUTY OF SHERIFF TO COMPLY WITH ORDER-ABILITY TO COMPLYPROPERTY HELD BY THIRD PARTY.-It is the duty of a sheriff to comply with a judgment against him commanding him to take possession of and deliver to petitioner certain personal property, where the judgment has not been reversed or set aside and no stay bond given; and whether the defendant can comply with the order by reason of the fact that the property is in the possession of another can only be determined by the court upon the showing made by him in response to a citation to show cause why he should not be punished for contempt for failure so to do. (Id.) 3. JUDGMENT AGAINST HOLDER OF PROPERTY-STAY BOND ON APPEAL. The fact that another party having possession of the property in question has appealed from a judgment against it for its recovery and given a stay bond on appeal is not a matter for consideration in the proceedings against the sheriff. (Id.) 4. MOTION TO DISMISS-INSUFFICIENT NOTICE OF MOTION.-A notice of mction to dismiss an appeal on the ground that the appellant had failed to furnish the requisite papers is insufficient where such notice fails to point out and designate the particular papers necessary to the consideration of the appeal which are claimed to have been omitted from the record. (Garrett v. Garrett, 173.) 5. GENERAL ORDER GRANTING NEW TRIAL-CONFLICTING EVIDENCE.— Where the evidence is conflicting as to material matters, an order APPEAL (Continued). granting a new trial will be affirmed on appeal, notwithstanding the written order of court contains a statement of what purports to be the reasons influencing the court in granting the motion, where the order is such as to require it to be treated as a general one, the court not having expressly limited it to definite grounds, and the grounds of motion having included the one of the insufficiency of the evidence. (Brode v. Clark, 182.) 6. JUDGMENT-ROLL ORDERS NOT INCORPORATED IN BILL OF EXCEPTIONS-REVIEW NOT PERMITTED.-Upon an appeal taken from a judgment in an action to quiet title upon the judgment-roll without any bill of exceptions or statement of the case, the appellate court can only consider such papers and orders as are declared by the code to constitute a part of the judgment-roll, notwithstanding included in the transcript there are certain exhibits and orders upon which reliance is made for a reversal of the judgment. (Brown v. Canty, 183.) 7. JUDGMENT IN FAVOR OF STATE-PARTY AGGRIEVED.-The state of California is a party aggrieved and has the right of appeal from a judgment in its favor in an action brought against it to condemn land, notwithstanding the state in its answer denied any ownership in the land, and declared that the United States was the owner thereof. (Pacific Power Company v. State of California, Mono County Irrigation Company v. State of California, 719.) 8. DEFAULT IN FILING OF BRIEF- SUFFICIENCY OF EXCUSE. An appeal taken by the state from a judgment will not be dismissed for the failure of the appellant to file its points and authorities within the prescribed time, where it is made to appear that the time to file its briefs was inadvertently allowed to expire by reason of misunderstandings between representatives of the attorney-general's office and the deputy attorney-general, who had charge of the litigation, as to the obtaining of an extersion of time from the court. (Id.) See Attachment, 6, 7; Costs, 1-3; Criminal Law, 5, 16, 29; ASSAULT AND BATTERY. - FORCE USED BY DEFEND 1. ASSAULT AND UNLAWFUL IMPRISONMENT ANT —QUESTION FOR JURY-APPEAL.-In an action for damages for an assault and battery and for an unlawful imprisonment following an altercation concerning the ownership of a ten-dollar bill, it is for the jury to determine from the evidence whether or not excessive and unnecessary force was used upon the person of the plaintiff, and where there is evidence favorable to the plaintiff upon such issue, ASSAULT AND BATTERY (Continued). the verdict of the jury is conclusive on the appellate court. (Riffel v. Letts, 426.) - 2. AWARD OF DAMAGES-DISCRETION-EXCESSIVE VERDICTREVIEW ON APPEAL. As a general rule, what will be a proper and reasonable compensation for the damages occasioned by injuries to the person is a question committed to the sound discretion of the jury. In considering an attack upon a verdict as excessive the appellate court must treat every conflict of the evidence as resolved in favor of the respondent, and must give him the benefit of every inference that can reasonably be drawn in support of his claim. (Id.) 3. ARREST "WITHOUT LEGAL JUSTIFICATION"-DAMAGES-INSTRUCTION. An instruction defining an arrest, and then stating that "for a private person to take another into custody, without legal justification, and restrain him of his liberty for a time and then turn him loose without taking him before a magistrate, or to a peace officer, is unlawful, and constitutes a trespass upon the liberty of the one so restrained for which he may be compensated in damages," is not prejudicial, for failure to adequately explain the words "without legal justification," where in other instructions, to which no objection is made, the court gives instructions showing the circumstances under which an arrest or imprisonment is legal or justifiable and also the circumstances under which an arrest or imprisonment is not legal or justifiable. (Id.) 4. EVIDENCE-VERDICT NOT EXCESSIVE.-In an action to recover damages for injuries received from an assault and battery and from an unlawful imprisonment, the complaint being in two counts, it cannot be said that a verdict in the sum of two thousand five hundred dollars is excessive, where the jury is instructed that only actual damages are recoverable, and the evidence shows that the plaintiff was an unmarried woman and in good health at the time of the alleged occurrence, that she suffered much humiliation and distress of mind at the time and afterward, caused by being arrested and imprisoned in a caged wagon in a public street and in the presence of her neighbors, and that this caused great nervous excitement and shock, which seriously affected her health for a considerable time after the occurrence. (Id.) See Criminal Law, 10-15. ASSIGNMENT. See Pledge, 1, 2. ATTACHMENT. AMENDMENT. An under 1. DEFECTIVE AFFIDAVIT ON UNDERTAKING taking on attachment to which is attached an affidavit of justification of sureties which by inadvertence fails to state whether the sureties are freeholders or householders is subject to amendment, and |