McLaughlin

Upon the former appeal in this case ( 89 Cal. 354 ), the case was remanded for a new trial, for failure of the trial court to find whether Hirleman, the predecessor of the defendant, was a bona fide settler upon the lands involved in the action, within the meaning of section 4 of the act of Congress of July 2, 1864 (13 U. S. Stats. 358), amending the act of July 1, 1862. That section, so far as applicable to the present case, as found in the printed volume of the statutes, reads as follows: “And any lands granted by this act, or the act to which this is an amendment, shall not defeat or impair any pre-emption, homestead, swamp land, or other lawful claim, nor include any government reservation or mineral lands, or the improvements of any bona fide settler, or any lands returned and denominated as mineral lands, and the timber necessary to support his said *574 improvements as a miner or agriculturist,” etc.; and this court, in its opinion upon the former appeal, assumed this reading to be correct. Upon the subsequent trial of the cause the superior court found that Hirleman was a bona fide settler, within the meaning of the act of Congress, and rendered judgment in favor of the…