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the penal code, it was proper for the court to give them to the jury as matter of law for their information: Id., sec. 1127.

The seventh instruction, copied from section 956 of the penal code, was not applicable, because there was no erroneous allegation as to the person injured. The information charged the embezzlement of the personal property of Carl Haneke. As to the offense itself, the name of the party injured, or the description of the property, there was no de-. fective allegation. It was not necessary to specify in the information, or prove at the trial, the coin, number or kind of money embezzled: Secs. 956, 1131, Pen. Code. And as the allegations of the information were sufficient in respect to these things, there was no prejudicial error in reading, as an abstract proposition, the section of the penal code contained in the objectionable instruction. It did not affect any substantial right of the defendant: Id., secs. 1248, 1504.

The following instruction is also challenged: "A witness false in one part of his testimony is to be distrusted in other parts." This is substantially the language of subdivision 3, section 2061, code of civil procedure, and is correct. But it is said to be erroneous because the word "willfully" was not inserted immediately before the word "false" in the instruction. The defendant did not ask for a modification in that regard. But the omission of the word did not effect the correctness of the proposition.

In People v. Sprague, 53 Cal. 491, a like instruction was asked by the defendant in a criminal action. The trial court did not give the instruction as asked, but of its own motion inserted the word "will-" fully" immediately before the word "false," and with that correction gave the instruction to the jury, against the defendant's objection and exception, and on appeal it was held that the insertion of the word. "willfully" in the instruction did not change the effect of the instruction as offered. The instruction as given was therefore virtually the instruction offered. Upon the authority of that case, People v. Hicks, 53 Cal. 354, and People v. Soto, 59 Id. 367, were also decided.

It is also objected that the court, against the objection and exception of defendant, refused to stop the attorney for the people from reading, in the course of his argument to the jury, extracts from "books of law and reports of judicial decisions on matters of law."

In People v. Anderson, 44 Cal. 65, the practice of reading from lawbooks in an argument to a jury was considered as improper; but it was held not to be a reversible error, because it was a matter within the discretion of the trial court, and unreviewable by this court, except for an apparent abuse of discretion. The record shows that the act was permitted by the court as illustrative of the argument made. to the jury, and that the court, in its charge to the jury, instructed them upon the subject as follows:

"You are the exclusive judges of the testimony, and also the credibility of the evidence, and it is the duty of the court to instruct you as to the law of the case, upon which you must act in arriving at your verdict in this case.

"There has been a great deal of law read to you by most of the attorneys in the case, but it is your duty to decide the case according to the law as it is given to you by the court, regardless of any law which has been read to you from the books by any of the counsel in the case."

There was no prejudicial error in admitting in evidence, for the purpose for which it was offered, the letter to Quinn written for Haneke and his daughter by their attorney in San Francisco. Nor was there any abuse of discretion in postponing the trial at the request of the people, to procure the attendance of witnesses.

We find no reversible error in the record.

Judgment and order affirmed.

MORRISON, C. J., and Ross, MYRICK, and THORNTON, JJ., Concurred.

EMBEZZLEMENT, WHO MAY BE GUILTY OF: See note to Commonwealth v. Libbey, 45 Am. Dec. 185.

No. 8,843.

THRIFT V. DELANEY.

Department Two. Filed March 30, 1886.

EJECTMENT JUDGMENT IN, WHEN A BAR.-A judgment rendered in an action to recover the possession of real property, under the system of pleading and practice adopted in this state, is, as to all matters put in issue and passed on in the action, conclusive between the parties and their privies, and a bar in another action between the parties or their privies, when the same matters are directly in issue. The bar of a judgment in such an action is, however, limited to the rights of the parties as they existed at the time when it was rendered, and neither the parties nor their privies are precluded by the same from showing, in a subsequent action, any new matters occurring after its rendition, which give the defeated party a title or right of possession.

THE SAME HOMESTEAD ENTRY-PUBLIC LANDS.-In January, 1879, the land in controversy was public land of the United States, and open to homestead entry. On that day the plaintiff, under a homestead entry upon it by filing the requisite application and affidavit with the register and receiver of the proper land-office, and paying the necessary fee. In April, 1879, the defendant in this action commenced an action against Thrift to recover from him the possession of the land covered by his homestead entry. In the complaint it was alleged that the plaintiff was the owner and seised in fee of the prem ises, and that the defendant (plaintiff here) had entered and ousted him therefrom. Upon the trial the plaintiff offered no evidence of a paper title, but relied solely on evidence of prior actual possession and inclosure of the land. The defendant contested his right to recover on that ground, but did not offer the receipt given him by the register and receiver, or any evidence of his homestead entry. The court found and adjudged that the plaintiff in the action was the owner of the premises sued for, and entitled to the possession thereof. Subsequently Thrift commuted his homestead entry to a cash entry, and received a patent to the land. He thereupon commenced the present action to obtain possession. Held, that the prior judgment was not a bar to the present action, as the patent, based upon the cash entry, gave him a new title.

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

Rutledge & McConnell, and A. W. Thompson, for the appellant.
George Pearce, for the respondent.

BELCHER, C. C. On the twentieth day of January, 1879, the land in controversy was public land of the United States, and open to preemption or homestead entry. On that day the plaintiff, Sabin D. Thrift, made a homestead entry upon it by filing with the register and receiver of the proper United States land-office the requisite application and affidavit, and paying them the fee and commission required by law in such cases.

On the fifteenth day of April, 1879, the defendant in this action commenced an action against Thrift to recover from him the possession of the land covered by his homestead entry. In the complaint, it was alleged that the plaintiff was the owner and seised in fee of the premises, and that the defendant (plaintiff here) had entered and ousted him therefrom. The defendant appeared and for answer to the complaint denied that the plaintiff was the owner or seised in fee of the premises, or entitled to the possession thereof. The case was brought to trial on the second day of June following. Upon the trial, the plaintiff offered no evidence of a paper title, but relied solely on evidence of prior actual possession and inclosure of the land. The defendant contested his right to recover on that ground, but did not offer the receipt given him by the register and receiver, or any evidence of his homestead entry. The court found and adjudged that the plaintiff in the action was the owner of the premises sued for, and entitled to the possession thereof. On this judgment, a writ of restitution was issued on the twenty-third day of the same month, and under it the defendant was removed from the possession and the plaintiff was placed in the possession of the land. The judgment so rendered has never been reversed, modified, or set aside, but remains in full force and effect.

Afterwards, on the fifth day of November, 1881, Thrift elected to commute his homestead entry to a cash entry, and to that end he surrendered his homestead entry receipt, paid for the land at the rate of a dollar and a quarter per acre, and received from the receiver of the land-office a receipt showing full cash payment. Upon this cash entry, the United States issued to him a patent for the land on the fifteenth day of March, 1882.

This action was commenced in November, 1882, to recover back the possession of the land. The defendant answered to the complaint, and, among other things, pleaded in bar of the action his former judg

ment.

The above is the substance of the facts found by the court, and upon the findings, judgment was rendered in favor of the plaintiff Thrift. The appeal is from the judgment, and an order denying a new trial.

The principal question presented for decision relates to the plea in bar. It is not pretended that the appellant has any title or right to the land sued for, unless he can claim it under and by reason of his former judgment in ejectment. It is, however, insisted by him that when the former judgment was rendered, the respondent had perfected his homestead entry, and was in such relation to the source of title that he might have defended successfully against the action, and hav

ing failed or neglected to do so, the judgment is conclusive upon all rights he then had or has since acquired to the property involved in it. There can be no doubt that a judgment rendered in an action to recover the possession of real property, under the system of pleading and practice adopted in this state, is, as to all matters put in issue and passed on in the action, conclusive between the parties and their privies, and a bar in another action between the parties or their privies, when the same matters are directly in issue. The bar of a judgment in such an action is, however, limited to the rights of the parties as they existed at the time when it was rendered, and neither the parties nor their privies are precluded by the same from showing, in a subsequent action, any new matters, occurring after its rendition, which give the defeated party a title or right of possession: Caperton v. Schmidt, 26 Cal. 479; Mahoney v. Van Winkle, 33 Id. 448.

Thus, it has been held, when judgment for the possession of a quarter-section of land was rendered against one, after he had proved up and paid for the land, under the pre-emption laws of the United States, and subsequent to the rendition of the judgment had received a patent for it, that the judgment was conclusive, and barred his rights in any subsequent action: Byers v. Neal, 43 Cal. 210.

This ruling was made upon the ground that the pre-emptor, when he proved up and paid for his land, acquired a title to it which he could sell or mortgage, or which could be sold out on process against him, and the patent afterward received was not a new title, but merely a formal assurance of an estate which he had already acquired.

It has also been held, where a pre-emptor had only settled upon and filed his declaration of intention to pre-empt a piece of public land, and then in an action commenced against him for its possession, had been defeated and put out of it, but afterwards had gone upon another portion of the land and again filed his declaration of intention to pre-empt the whole tract, and had then proved up and paid for the land and obtained a patent for it, that the former judgment was not a bar or estoppel in any new action: Montgomery v. Whiting, 40 Cal. 294.

And this ruling was made upon the ground that until the pre-emptor proved up and paid for the land, he had no title to it, either inchoate or otherwise, and the judgment was not a bar to any title acquired by him after its rendition.

In this case, it appears that when the judgment in Delany v. Thrift was rendered, Thrift had merely filed the necessary papers to enable him to take the land as a homestead, but this gave him no title to it. As said by the supreme court of the United States, quoting from an opinion of Attorney-general Speed: "It is not to be doubted that settlement on the public lands of the United States, no matter how long continued, confers no right against the government. . . . . The land continues subject to the absolute disposing power of congress until the settler has made the required proof of settlement and improvement and has paid the requisite purchase-money:" Frisbie v. Whitney, 9 Wall. 195. Under the homestead laws of the United States, every person who

is the head of a family, or who has arrived at the age of twenty-one years, and is a citizen of the United States, or has filed his declaration of intention to become such, may make a homestead entry upon not exceeding one quarter section of unappropriated public land. To do this, he must file in the proper land-office an application for the land, and an affidavit showing his right to make the entry and "that such application is made for his exclusive use and benefit, and that his entry is made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person." Upon this entry, no certificate or patent for the land can be issued to him until the expiration of five years from the date of the entry, and then only upon satisfactory proof that he has resided upon or cultivated the same for the term of five years immediately succeeding the time of filing his affidavit. If during the five years he changes his residence or abandons the land, for more than six months at any time, then and in that event the land reverts to the government.

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He may, however, if he elects to do so, pay the minimum price for the land at any time before the expiration of the five years, and then obtain a patent therefor from the government, on making proof of settlement and cultivation, as provided by law granting pre-emption rights: U. S. R. S., secs. 2289 et seq.

It must be apparent from this statement of the law that the govern ment offers to give to the qualified claimant a homestead upon condition that he reside upon or cultivate the land for five years, just as it offers to give to the qualified pre-emptor a right to purchase, upon certain conditions, at the minimum price.

But no estate vests in the pre-emptor until he has performed the conditions and has proved up and paid for the land: Hutton v. Frisbie, 37 Cal. 475; Low v. Hutchings, 41 Id. 634; Frisbie v. Whitney, 9 Wall. 187.

The same rule, it seems to us, must apply to the homestead claimant, and no estate in the land will vest in him until he has complied with the prescribed conditions. The bare entry of a homestead can no more confer a right to, or estate in, the land, or a right to its possession, as against the government, than can the filing by the pre-emptor of his declaration of intention to pre-empt.

Here, without complying with the conditions which were precedent to his right to obtain a homestead patent, Thrift elected and was permitted to surrender his homestead claim and to pay for the land as a pre-emptor. When he did this according to the instructions of the commissioner of the general land-office, he made "a new and original entry," and was entitled to a "pre-emption_certificate and receipt as in ordinary pre-emption cases:" Zabriskie's Land Laws of the United States, p. 149.

The patent which followed that new and original entry gave to him a new title, and it seems clear that he cannot be barred or estopped from asserting that title by any judgment in ejectment rendered before he obtained it.

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