he would not have insisted upon the testimony. It had no place in the case, and, if it were relevant testimony, it would have been improper to educe it from the defendant under the circumstances. It had no connection with the matters concerning which he had testified in chief.

The court refused to give the following instruction asked for by the defendant: "The witness Strait, not being a peace officer, had no right to arrest or attempt to arrest the defendant for begging, and the defendant was justified in resisting such arrest or attempting to free himself from the hold of said witness, after he had arrested him, upon ascertaining that the person so arresting him was not an officer authorized to make arrest."

Upon this subject the court, against the exception of defendant, instructed the jury as follows: "Now the question arises, Was this defendant committing an offense for which a private person might arrest him on the occasion of this transaction which has been detailed to you? Section 647 of the Penal Code of the state defines who are vagrants, and, as I understand the testimony given in this case, it is for the offense of vagrancy in some one or other of its forms that this arrest was made, and made by a private person, and made for the public offense of vagrancy."

Section 837, Penal Code, provides: "A private person may arrest another: 1. For a public offense committed or attempted in his presence."

Vagrancy is defined in section 647 of the Penal Code. In that section various classes of persons are pronounced vagrants, made such, by their practices, habits, and mode of life-and dependent sometimes partially upon physical condition.

There is nothing in the testimony showing or tending to show that the defendant committed or attempted to commit the public offense of vagrancy in the presence of the prosecuting witness. The statute makes it an offense for a healthy beggar to solicit alms as a business. For one to ask assistance on one occasion does not make him a vagrant.

As an employee of the railroad company the prosecutor had a right to remove the defendant from the cars, and to protect passengers from annoyance by him, using no unnecessary force to that end, but he had no right to arrest him, and defendant was justified in resisting such unlawful detention.

I think the instruction ought to have been given as asked.

It would serve no useful purpose to consider other alleged

errors.

The judgment and order are reversed.

MCFARLAND, J., and HENSHAW, J., concurred.

[No. 19450. Department Two.-July 11, 1895.] LOUIS G. DREYFUS, EXECUTOR, ETC., RESPONDENT, v. DAVID W. BADGER, APPELLANT.

PATENT ENFORCEMENT OF TRUST-SHOWING REQUIRED.-A person seeking to have a patentee declared his trustee, in the absence of any contract between the parties, must connect himself with the paramount source of title, and show that he has prosecuted his claim with diligence.

ID. LIEU LANDS LISTED TO STATE-LACHES OF OCCUPANT.—Where an occupant of land listed to the state in lieu of school land, who seeks to have the patentee of the land from the state declared his trustee, was a qualified pre-emptor residing on the land, and had filed in the local United States land-office his declaratory statement of his intention to pre-empt the land after the state surveyor general had made application to have the land listed to the state as lieu land, whereupon his declaratory statement was canceled, and the land listed to the state, but he took no appeal, and recognized the land as state land, and made application to purchase it from the state, which was rejected to his knowledge on account of the prior application upon which the patent was issued, after which he took no steps to contest the prior application, but slept upon his rights for several years, and until the patent was issued, without being kept in ignorance by any fraud of the patentee, he is guilty of such laches as does not give him any status under which to hold the patentee as his trustee.

ID. CONCLUSIVENESS OF PATENT-COLLATERAL ATTACK.-Where a patent regular on its face for land owned by the federal or state government has been issued under a law providing for its disposal upon the ascertainment of certain facts, the officers of the land department

have jurisdiction to determine such facts, and the issuance of the patent is, upon collateral attack, a conclusive declaration, as against all claiming under the government, that the facts have been found in favor of the patentee.

iD. CHARACTER OF LAND-SUITABLENESS FOR CULTIVATION-EJECTMENT-COLLATERAL ATTACK UPON PATENT.-Where the plaintiff in ejectment claims under a patent from the state of land listed to it by the government of the United States in lieu of school land, under an affidavit showing that the land was not suitable for cultivation, the patent is conclusive as to the conditions and characteristics of the land, and that the land was of such a character as to not be suitable for cultivation within the meaning of the law, and the patent cannot be collaterally assailed by the defendant in ejectment by proof that the land was suitable for cultivation.

ID. CONCLUSIVENESS OF PATENT AS TO CHARACTER OF LAND-SOURCE OF TITLE. The conclusiveness of a patent as to the character of land has no application to a case where the parties claim under independent and hostile sources of title, but it applies to all those who claim under the same source of title under which the patent was issued; and, where the United States, through proper officials, has listed or patented lands to the state, subsequent claimants under the United States are concluded from contesting the characer of the land so listed or patented.

APPEAL from a judgment of the Superior Court of Santa Barbara County and from an order denying a new trial. W. B. COPE, Judge.

The facts are stated in the opinion of the court.

B. F. Thomas, for Appellant.

The testimony shows that the land was suitable for cultivation within the meaning of the law. (Pol. Code, section 3495; Jacobs v. Walker, 90 Cal. 43; Manley v. Cunningham, 72 Cal. 236; Fulton v. Brannan, 88 Cal. 454.) The constitutional provision that land suitable for cultivation should be granted only to actual settlers is mandatory and prohibitory. (Const., art. I, sec. 22, art. XVII, sec. 3.) The application for the patent being false, the applicant was not entitled to purchase, or to receive a patent. (Pol. Code, sec. 3500; Davidson v. Cucamonga Fruit etc. Co., 78 Cal. 4; Harbin v. Burghart, 76 Cal. 120; McKenzie v. Brandon, 71 Cal. 210; Manley V. Cunningham, supra; Hollinshead v. Simms, 51 Cal. 158; Sacramento Savings Bank v. Hynes, 50 Cal. 195; McDonald v. Taylor, 89 Cal. 42; Dillon v. Saloude, 68

Cal. 267.) The patentee, having gained the land through fraud and false statements, is an involuntary trustee of the defendant as an actual settler. (Civ. Code, sec. 2224; Monroe Cattle Co. v. Becker, 147 U. S. 47.) Defendant by his declaratory statement connected himself with the paramount source of title, and can enforce a trust. (Burling v. Thompkins, 77 Cal. 261; Widdicombe v. Childers, 124 U. S. 400; Plummer v. Brown, 70 Cal. 546; Sanford v. Sanford, 139 U. S. 642; Rosecrans v. Douglass, 52 Cal. 215.) The defendant in his crosscomplaint offered to reimburse plaintiff all the expenses incurred in procuring title to the land, and is entitled to complain of the fraud upon his rights. (Buckley v. Howe, 86 Cal. 597; Moore v. Robbins, 96 U. S. 530; St. Louis Smelting Co. v. Kemp, 104 U. S. 636; Dolhequy v. Tabor, 22 Cal. 280; Cumens v. Cyphers, 56 Cal. 383.) A patent issued with all the forms of law may be shown to be void by extrinsic evidence showing a want of authority for its issuance. (Kile v. Tubbs, 59 Cal. 191; Cucamonga Fruit Land Co. v. Moir, 83 Cal. 107; Doolan v. Carr, 125 U. S. 618; Edwards v. Rolley, 96 Cal. 408; 31 Am. St. Rep. 234; Read v. Caruthers, 47 Cal. 181; Keeran v. Griffith, 34 Cal. 580; Trimmer v. Bode, 82 Cal. 647; Southern Pac. R. R. Co. v. McCusker, 67 Cal. 67; Knight v. United Land Assn., 142 U S. 161; Polk v. Wendall, 9 Cranch, 87; Kansas City etc. Co. v. Clay (Ariz., Jan. 16, 1892), 29 Pac. Rep. 9; Reynolds v. Iron Silver Min. Co., 116 U. S. 687.)

Richards & Carrier, for Respondent.

The state was entitled to the land reserved to it as lieu land as of the date of the application of the state. (Frasher v. O'Connor, 115 U. S. 102; Howell v. Slauson, 83 Cal. 539; McCreery v. Haskell, 119 U. S. 327.) One whose application has been rejected by the government is not in privity with the government. (Chapman v. Quinn, 56 Cal. 266; Kentfield v. Hayes, 57 Cal. 409.) Acquiescence, by failure to appeal from a rejected application, defeats the right of the applicant to hold the

patentee as trustee on the ground of fraud. (Buckley v. Howe, 86 Cal. 596; Vance v. Burbank, 101 U. S. 514; State v. Bachelder, 5 Minn. 223; 80 Am. Dec. 410.) In ejectment based upon a patent the plaintiff must prevail unless the patent is absolutely void. (Shanklin v. McNamara, 87 Cal. 371; Steel v. St. Louis etc. Co., 106 U. S. 447.) The character of the land is a question of fact to be determined in the land-office, or upon a contest instituted in the land-office. (Johnson v. Towsley, 13 Wall. 83; Dillon v. Saloude, 68 Cal. 267; Cowell v. Lammers, 21 Fed. Rep. 206; St. Louis Smelting Co. v. Kemp, 104 U. S. 641, 645; O'Connor v. Frasher, 56 Cal. 499; French v. Fyan, 93 U. S. 169; Wright v. Roseberry, 121 U. S. 488; Chandler v. Calumet etc. Min. Co., 149 U. S. 79; Ah Yew v. Choate, 24 Cal. 562; Ferry v. Street, 4 Utah, 521;; Blakslee Mfg. Co. v. Blakslee's Sons' Iron Works, 129 N. Y. 155; Norvell v. Camm, 6 Munf. 233; 8 Am. Dec. 742; Shepley v. Cowan, 91 U. S. 330; Cruz v. Martinez, 53 Cal. 239; Green v. Hayes, 70 Cal. 276; Heath v. Wallace, 138 U. S. 585.)

MCFARLAND, J.-This was an action of ejectment in which judgment went for plaintiff. Defendant appeals from the judgment and from an order denying a new trial.

The land in contest was listed to the state in lieu of certain school land; and a patent thereto was issued by the state to plaintiff's testator in pursuance of a certificate of purchase issued to one C. F. Wilson. Wilson filed his application for the land in the state land-office on December 31, 1886; his application was approved August 30, 1889; a certificate of purchase was issued to him September 11, 1889; he assigned his certificate to Isadore Dreyfus (respondent's testator) on October 28, 1889; and On February 24, 1893, the state of California issued its patent for the land to said Isadore Dreyfus.

On January 27, 1887, appellant, who was a qualified preemptor residing on the land, filed in the local United States land-office his declaratory statement of his inten