discloses that while plaintiff did not precisely answer the description furnished by the complaining witness of the man who had embezzled her money as to age or as to a noticeable scar on one of his hands, still by inference it appears that he measured up to the furnished description as far as build, weight, complexion, and nativity were concerned. Upon arriving in San Francisco Minehan immediately made his return on the warrant, and plaintiff was incarcerated. Still protesting his innocence, he was confronted by the complaining witness who, after two visits to the prison, refused to identify him as the thief. Notwithstanding this the plaintiff was kept in confinement for a period of ten days, when he was arraigned on the indictment, at which time, the complaining witness not appearing, the court received evidence as to the identity of the plaintiff and ordered his release from custody.

When a warrant, valid in form and issued by a court of competent jurisdiction, is placed in the hands of an officer for execution, it is his duty without delay to carry out its commands; and the law is well settled that for the proper execution of such process the officer incurs no liability, however disastrous may be the effect of its execution upon the person against whom it is issued. (Newell on Malicious Prosecution, sec. 70; 11 R. C. L. 795.) The authority, however, derived from the warrant justifies the officer in arresting no one but the person named therein against whom it is issued; and any interference, therefore, with the liberty of a person other than the one named in the writ renders the officer liable in trespass, unless such interference is caused by the act of the person himself. (Newell on Malicious Prosecution, sec. 74.) Accordingly, it has been held that an officer will not be justified in arresting a person other than the one named in the warrant even if he is the one intended. (11 R. C. L., sec. 12, p. 799; Newell on Malicious Prosecution, sec. 73.) Likewise, that a warrant is no defense to an officer who arrests and refuses to release the wrong person, although bearing the same name, where an investigation would have disclosed the fact of his innocence. (11 R. C. L. 220; Clark v. Winn, 19 Tex. Civ. App. 223, [46 S. W. 915].) Here, however, it appears that the process, which was regular in form and legally issued, described the plaintiff by his name, which is the usual way (11 R. C. L., sec. 12, p. 799),

and that he was in fact the person for whom it was intended. Under such circumstances, even if Minehan had been in doubt as to whether or not the plaintiff was the person who committed the crime, he was not bound to decide that question; and he was certainly acting within his duty when he took the plaintiff into custody, and thus permitted the question of identity to be ultimately decided. Under the undisputed facts of the case the warrant is a complete defense to this action against the office. (Cox v. Durham, 128 Fed. 870, [63 C. C. A. 338]; Madden v. Meehan, 153 Ky. 648, [156 S. W. 116].)

In view of the innocence of plaintiff, his confinement and restraint for ten days are unfortunate, but for this the defendants are not responsible. Minehan discharged his duty as an agent of the state when he delivered him to the city prison in San Francisco. He then, it appears, in his capacity as a police officer, took plaintiff into custody under a bench warrant issued by the superior court, and delivered him to his superior officer, who was in charge of the city prison, and from then on neither of these defendants was responsible for the plaintiff's detention nor for any delay in the proceedings against him.

From the evidence it appears that the prima facie case made out by the plaintiff was overcome by the evidence justifying Officer Minehan's acts respecting the arrest and imprisonment of plaintiff, and that such evidence in justification was not at all, or at least substantially, rebutted. The action of the trial court in instructing the jury to return a verdict in favor of Minehan, therefore, cannot be disturbed. The authorities so hold. "A directed verdict is proper whenever, upon the whole evidence, the judge would be compelled. to set a contrary verdict aside as unsupported by the evidence." (Estate of Baldwin, 162 Cal. 471, [123 Pac. 267].) To the same effect see Davis v. California St. R. R. Co., 105 Cal. 131, [38 Pac. 647].)

In Lacey v. Porter, 103 Cal. 597, [37 Pac. 635], the court says: "It is further insisted that the court erred in taking from the jury the question of the credibility of witnesses, malice, motives, intention, and belief of respondent, and what facts the evidence established. The general rule undoubtedly is that these questions should be submitted to the jury where the evidence is conflicting; but it is equally well settled that

the court may, within certain limits, control the verdict, either by such an instruction as was here given, or by setting it aside and granting a new trial, either upon motion of the defeated party or upon its own motion. To justify the court in directing a verdict it is not necessary that there should be no conflict in the evidence; but where the evidence is such that it is clearly insufficient to support a verdict in favor of the party against whom the direction is given, the instruction is proper, unless the circumstances of the case indicate that upon another trial a different verdict may be had. But in either case the decision of the court below will be sustained, unless the appellate court can clearly see that its conclusion is wrong upon the facts."

Assuming that White is a party to this appeal, although not named in the verdict or judgment, as to him it is sufficient to say that while he has grounds of defense other than those herein discussed, it follows, under the circumstances of the case, that what we have said concerning his codefendant disposes of the case as to him.

The judgment is affirmed.

Lennon, P. J., and Beasly, J., pro tem., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on April 27, 1918, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 27, 1918.

[Civ. No. 1793. Third Appellate District.-March 29, 1918.] AUGUST J. BATT, Respondent, v. FRANCIS M. STEDMAN, Appellant.

MINING LAW-LOCATION OF LODE CLAIM-POSTING OF NOTICE AT POINT OF DISCOVERY.-In the locating of a lode mining claim, the requirements of section 1426 of the Civil Code as to the posting of notice of location at the point of discovery must be complied with.

QUIETING TITLE-OWNERSHIP OF CLAIMS-FINDING.-In an action to quiet title to mining claims, where plaintiff's right of ownership and

possession was in no way dependent upon a prescriptive title, it was sufficient to find that, at the commencement of the action, plaintiff was the owner and entitled to the possession of the claims, and the portion of a finding declaring that plaintiff for more than five years prior to the commencement of the action had been the owner in fee and entitled to the possession, may be disregarded as surplusage.

CONSTRUCTION OF LOCATION NOTICES.-Location notices should be liberally construed, having reference to the circumstances under which, and the character of the parties by which, they are generally made; and in determining the sufficiency of a location notice, the most important guide is the purpose of the notice, which is to identify the land claimed with reasonable certainty.

ID. IDENTIFICATION OF CLAIM EVIDENCE- MONUMENTS.-Under section 1426 of the Civil Code, which requires a description of the claim by reference to some natural object or permanent monument as will identify the claim located, testimony of a deputy United States mineral surveyor as to his finding stone monuments on the exterior boundaries of the claim, and the reference in the amended location certificate thereto, sufficiently satisfies the requirements of the code provision.

APPEAL from a judgment of the Superior Court of Butte County. K. S. Mahon, Judge Presiding.

The facts are stated in the opinion of the court.

S. W. Molkenbuhr, for Appellant.

W. H. Carlin, for Respondent.

HART, J.-As respondent states that appellant, in his brief, has substantially stated the case, we adopt appellant's statement, as follows:

"This is an action to quiet title, pursuant to section 2326, Revised Statutes of the United States, [Fed. Stats. Ann., 2d ed., p. 563; U. S. Comp. Stats. 1916, sec. 4623], brought upon adverse claims of respondent on the Samson lode and Annex placer locations to appellant's application for United States patent on the Mammoth lode claim. After trial, without a jury, the court rendered judgment in favor of respondent, awarding to him certain areas in conflict with appellant's claim. Appellant, nevertheless, was awarded (upon his cross-complaint) the possession of a small fraction of the Mammoth location. Appellant moved for a new

36 Cal. App.--39

trial, which motion was denied. An appeal was thereafter taken from the judgment.

"Respondent's initial and sole location of the Annex placer claim was made January 1, 1909.

"Respondent's first attempted location of the Samson lode claim was made January 1, 1911; an alleged amended location followed on August 26, 1911. A third location was made, but it was contended during the trial that it was made pursuant to advice and instructions of respondent's counsel; the latter testifying that had he known of the existence of the second location of August 26, 1911, he would not have advised respondent to relocate; that his advice was given because a certificate of the searcher failed to report the second location.

"Appellant located the Mammoth lode claim on July 15, 1912; an amended location, preparatory to application for patent and subsequent to a survey, was made August 27, 1914.

"Respondent Samson's location was claimed to have been made upon a vein running easterly and westerly; appellant's location was upon a vein having a northerly and southerly

course.

"Upon motion for a new trial, appellant urged, and upon this appeal urges, that the judgment be reversed because certain indispensable findings in favor of respondent are not supported by the evidence."

1. Appellant contends that finding No. 1 is not supported by the evidence. Said finding is: "At the date of the commencement of this action plaintiff was, and for more than five years prior and up to said date had been, ever since has been, and now is, the owner in fee, in the actual possession and entitled to the possession of" two parcels of land, described by metes and bounds.

t

Appellant makes the point that the location notice of the Samson lode claim was not posted at the point of discovery, as required by section 1426 of the Civil Code. The claim is that the evidence shows it to have been posted at a point seventy-five feet from the discovery.

There can be no question that the requirement of the code must be complied with. Said section 1426 is almost identical in language with section 3610 of the Political Code of Montana, under which latter section it has been held that