Robinson

This case has been here before, and is reported in 102 California, commencing at page 675. In the opinion then delivered the history of the case is fully stated, and for the purpose of this present decision it is not necessary to restate it.

At the retrial, out of which this present appeal arises, the court, when the evidence had all been offered, instructed the jury as follows: “The court instructs you, as a matter of law, to wit, the law in this case as declared by the supreme court of this state in this case, that the title claimed by the plaintiff in this case has been shown to be extinguished; and that, as a matter of law aforesaid; the plaintiff has no title to the lands in dispute in this action, and your verdict must be for the defendant. The court instructs you as a matter of law, to wit, the law of this case, declared so by the supreme court in this case, that the plaintiff is not entitled to recover herein, and you are hereby directed to bring in a verdict in favor of the defendant Thornton.” In accordance with these instructions the jury returned a verdict for the defendant.

These instructions were erroneous, and were given, no doubt, through a misunderstanding of…