¶1dissenting:
I respectfully dissent. In case of contest before the Land Department between pre-emption claimants, the State •courts will not retry a question of fact, unless on suggestion of fraud, or other grounds of equitable cognizance. (Burrill v. Haw, 48 Cal. 222; Quinn v. Kenyon, 38 Cal. 499.)
¶2The defendant could not have been taken by surprise by the testimony offered by plaintiff before the land officers in respect to his (defendant’s) ownership of other lands than those he sought to pre-empt. If he neither owned nor claimed other lands, this fact, from its very nature, he must have been prepared to establish. The prayer of defendant, therefore, is simply to have an issue of fact retried, which he was prepared to try, and, in fact, did try, before the land officers. It was not enough to say that the plaintiff introduced false testimony, knowing it to be false, but defendant should also have shown that he ivas deprived of an opportunity to establish the truth. The truth or falsehood of the statements of plaintiff’s witnesses was itself an issue before the land officers, which, for aught that appears, defendant was fully prepared to meet and did meet.