and Const. Law, pp. 124-5-6, 386, 60, 61 and 62; also and adjust the amount to be paid on the claim of pp. 415 and 416, particularly in point. Our own State authorities are also fully in point. Burch and Griffith, attorneys for plaintiff and respondents. J. B. Lamar, attorney for defendants and appellants. the plaintiffs. Judgment reversed, and cause remanded. BY THE COURT. Unwrittea Decision. (Decided October 5, 1878.) TERENCE BURKE, Pl'ff and Resp't The Act of March 8, 1878, provides that the State Board of Harbor Commissioners "are authorized to adjust, audit and pay, out of the Harbor Improvement Fund," such amount as Talcott and Onderdonk may equitably be entitled to, for certain work and materials mentioned in the act. It is not expressly stated in the agreed case that the Board had adjusted and audited the claim, nor that it had refused so to do, but it is claimed that the extract from the proceedings of the Board, Appeal from the Nineteenth District Court, San (whereby it appears that upon a vote being taken for the payment of the bill of the claimants, two of the members of the Board voted aye, and one member voted no) shows by implication, that the Board had audited and adjusted the claim, in the full amount of the bill. If that be the true construction to be given to those proceedings, the only remaining thing to be done is to pay the amount of the bill as audited. On behalf of the plaintiffs it is claimed that the amount is to be paid out of the funds in the hands of the Board, and the defendant contends that the payment is to be made out of the Harbor Improvement Fund in the State Treasury. VS VOLNEY CUSHING & JAS. PATTERSON, No. 6130. Francisco. E. D. WHEELER, Judge. APPEAL BONDS-DAMAGES BY ATTACHMENTS LEVIED. STATEMENT OF THE CASE. Action brought to recover damages caused by two attachments issued and levied in two different actions, in the Nineteenth District Court, entitled "Joshua Hendy vs. Terence Burke and F. G. Berry." The attachments were levied March 22, 1875, on five houses and lots in San Francisco, belonging to Burke; for which he had already negotiated a sale for $29,000. After the levy, the sale was consummated, but $7,200 of the purchase money was kept back by the purchasers on account of the levy, and pending its settlement. The attachments were dissolved by the court on September 17th, 1875, but Hendy took an appeal on September 22d, and made an undertaking for the purpose of continuing them in force pending the appeal, and the defendants, Cushing and Patterson, were his sureties. On August 30, 1876, the order appealed from was sustained by the Supreme Court, and this action was brought against the sureties for the damages arising from the loss of use of the property and purchase money retained, and the expenses of dissolving the attachment, in counsel fees, printing, etc., and asks judgment for $10,000. It may safely be laid down as a rule of statutory construction, that where there is a general law prescribing and defining the powers, duties, and mode of procedure of a public Board and a special law is passed relating to a particular matter, coming within the general scope of the powers of the Board, the two laws are to be read together; and the general law is applicable to the particular matter, except in so far as provision is made in the special law, conferring powers or prescribing duties or modes of procedure, differing from those mentioned in the general law. Accordingly, ii must be held that the "Harbor Improvement Fund" mentioned in the special law is the same as that mentioned in the general law; and when. ever that fund is mentioned in the general law it means the fund in the State Treasury, devoted to that purpose. It follows that the sum, as audited and adjusted, is to be paid as provided by Section Defendant's demurrer to the complaint was 2529 of the Political Code-by draft on the Con- sustained in part-as to the allegation of loss of troller of State, signed by the three Commission-profit in business sustained by the delay-but ers, and countersigned by their Secretary; and by warrant drawn by the Controller on the Treasurer. The agreed case does not show that a demand was made for the draft above referred to, and, therefore, the court would not command the Board to draw the draft on the Controller; for the Board is not in default, until there has been a demand and refusal. We are not to be understood as holding that two of the members of the Board could audit otherwise overruled. Cause tried by jury November 5, 1877, and a verdict for plaintiff of $595 52. Defendants moved for a new trial on a statement of the case, which was denied. The engrossed statement was not presented by defendants for final action until nearly two and one-half months after being ordered, (2. e. from January 15th till April 4, 1878). Defendants ap pealed on May 1, 1878, from the jndgment and or- And the defendants being sureties, "have a Respondent urges that the delay of two and onehalf months in presenting his engrossed statement on motion for new trial should alone bar him from a new trial. Quivey vs. Gambert, 32 Cal., 304; Cottle vs. Litch, 43 (al., 320; Eckstein vs. Calderwood, 27 Cal., 414: also being opposed to sections 659, 650, C. C. P. Thomas V. O'Brien, attorney for plaintiff and respondent. Wheaton & Scrivner, attorneys for defendants and respondents. and used the farm products as they saw fit, and no account of debt or credit was kept. That plaintiff did most of the work on the farm, while defendant did most of the marketing of the products, and used largely in boarding has hired men, and for his sheep, and no account kept. That plaintiff had furnished considerable hay, grain, and vegetables, upon entering into the partnership and no account kept. That on April 7, 1865, defendant entered and paid the government for the 200 acres of land before mentioned, in his own name, while plaintiff supposed it was jointly done. That the amount of money, labor, etc., contributed by plaintiff, equaled that done by defendant, including the fee purchase of the five forties, which were acquired in joint interest, and they are held in trust for both, share alike, undivided. That in not keeping accounts, they have treated the affairs as equal, and no accounting should be had to the commencement of the action. That the property cannot be divided in its present form, and an interlocutory order is made, direct Judgment and order affirmed. Remittitur forth- ing the sale of the land and all improvements; Referees reported sale of the premises on March Appeal from Ninth District Court, Siskiyou County. 17, 1877, for $4,425, to one D. Kuck, and no personal ROSBOROUGH, Judge. COPARTNERSHIP-DISSOLUTION-INTERLOCUTORY DE- STATEMENT OF CASE. Action commenced May 2, 1874, for a dissolution of co-partnership, an accounting of partnership matters, and that certain real estate (200 acres of land) be decreed joint property, and that defendant convey an undivided half therein, to plaintiff, and repay to him the amount found equitably due him, in the joint account. Plaintiff and defendant made a verbal agreement of co-partnership on November 19, 1864, for farming in Siskiyou county, and jointly purchased a tract of 40 acres of land of one Gregory, in fee, besides certain improvements on other 200 acres of United States Government lands, including an incomplete ditch taking the waters of "Big Bogus Creek." Both parties have continued the joint occupation till now, but each had some separate interests, in addition to the joint concerns, which they also pursued. Cause brought to a hearing on pleadings and evidence reported by a referee, and found that the parties lived together property found. Defendant refused to let purchaser into possession, and the court made an order on motion of plaintiff, to give possession, and for defendant to show cause why he should not be punished for contempt. Defendant again appealed on March 24, 1877, from the decree and order confirming the sale, and awarding the proceeds to plaintiff and defendant. The conditions annexed to his grant state Important Land Decision. that the land ceded is of this extent, and require U. S. CIRCUIT COURT. (Decided August 26, 1868.) THE UNITED STATES, Plaintiff, vs. GUADELUPE CASTRO ET AL., Defendants. MEXICAN GRANT Boundaries-COMPLETION OF TITLE. The original title papers showing a grant by the Mexican Government of ONLY TWO square leagues, and any surplus after measurement reserved for national use: HELD, that any designation by particular name and the specification of outboundaries yields to this limitation of quantity, as uniformly ruled by the Federal Courts. If omitted, the boundaries control. The grant having been approved by the Depart its measurements, and reserve any surplus for the national use. The designation of the tract ceded by a particular name, and the specification of the outboundaries, must yield to the limitation of quantity as thus expressed. Such has been the uniform ruling of the Federal courts in cases of this kind. It is only where this limitation is omitted that the concession is held to embrace the entire quantity within specified boundaries. Where this is wanting, the extent of the grant is only restricted by the boundaries named and the provisions of the colonization law of 1824. (U. S. vs. Pico, 5 Wal. 539.) The decree of the District Court entered in February, 1857, affirming the decision of the Board of Land Commissioners, contains a similar limitation. It adjudges the claim of the parties to be valid, and confirms it to "the extent of two square leagues and no mental Assembly, it only required official delivery of possesssion by the Magistrate of the Vicinage to perfect title; and this to be done by measure-more." Previous to the rendition of this ment and segregation from the public domain of the specific quantity granted. decree, the Attorney-General had transmitted a notice from Washington that the appeal would not be prosecuted by the United States; but the notice was not received at By going beyond specified and established boundaries in the measurement and survey, the magistrate vitiated his whole proceedings. The District Court held jurisdiction over this San Francisco until some time in March fol survey. JURISDICTION OF THE COURT-WHEN IT CEASES.-The lowing. Yet, notwithstanding the decree of jurisdiction of the Court over a cause after final the District Court, a stipulation was entered decree ceases with the term wherein rendered, as into between the District Attorney and the a protection from disturbance and litigation after attorney of the claimants, more than a year the merits of the case are fully heard and deter-afterward-in June, 1858-that the notice of intention to prosecute the appeal on the part mined. But not intended to protect in decrees entered by mistake any more than from those obtained by of the United States should be withdrawn fraud or imposition on the Court. In this case, a decree being inadvertently entered, proceedings to vacate were proper, notwithstanding the considerable lapse of time. FIELD, J. We do not deem it important to consider at length the several objections arged by the appellants to the decree of the District Court, approving the survey of the rancho confirmed to the claimants. A brief notice of them will be sufficient. and the appeal be dismissed, and that the claimants have leave to proceed upon the decree of the Board as upon a final decree; and upon that stipulation the District Court ordered the appeal to be dismissed, and gave the claimants the leave stipulated. It is very evident that this latter decree was inadvertently entered without the attention of the District Court being called to its previous decree. The notice of the Attorney-General had It is evident, from an examination of the ceased to be of any effect by the decree renoriginal title papers, that the Mexican Gov-dered during its transmission from Washingernment intended to cede to Castro only a ton to San Francisco. tract of two square leagues. It was no longer applicable to any pending S appeal. We think, therefore, the proceeding quantity than that granted to Castro, but The doctrine that the jurisdiction of the Court over a cause after final decree ceases with the term in which the decree is rendered, is intended to protect parties from disturbance and litigation after the merits of their cases have been fully heard and determined. It was not intended to protect them in decrees entered by mistake any more than in decrees obtained by imposition or fraud upon the Court. We must regard, therefore, the original decree of the District Court entered in January, 1857, which in terms has never been set aside, as the decree which must determine the extent of the land confirmed to the claimants. That decree, as we have already stated, limits the quantity to two square leagues. The position of the appellants, that their title had been perfected under the Mexican Government, and required no further action on the part of the United States, rests upon the supposed validity of the proceeding taken for the measurement of the land ceded and the delivery of its possession. The grant had received the approval of the Assembly of the Department, and had thus become definitively valid. The only subsequent proceeding essential to a complete investiture of the title was an official delivery of possession by the Magistrate of the Vicinage, a proceeding which required a measurement and segregation from the public domain of the specific quantity granted. (Malarim v. The United States, 1 Wal. 289.) The attempted proceeding for this segregation and delivery taken by a justice of the peace in January, 1846, assuming that he was a magistrate of the rank required in such cases, was clearly invalid. The Canada del Cerbo was the boundary between the grant to Castro and the subsequent grant to Amesti. This was expressly so declared by Micheltorena in this latter grant. The record of the proceedings of the justice shows that he passed beyond this boundary, and not only included in his measurement a much larger The objection to the jurisdiction of the District Court over the survey is untenable. In December, 1860, the Court had ordered the survey previously made into court. In January, 1862, it had allowed the exceptions taken to it, and had ordered a resurvey of the premises by the Surveyor-general. The act of July 1, 1864, to expedite the settlement of titles in California, while restoring to the surveyor-general and the General Land Office the jurisdiction over surveys of lands confirmed under Mexican grants, which they had previous to the act of June, 1860, provides that where proceedings for the correction or confirmation of surveys are pending at the time of its passage in the District Court, it shall be lawful for that Court to proceed and complete its examination and determination of the matter. The order calling in the original survey was the initiative of a proceeding for its correction, and the proceeding could not be considered ended, because the Surveyor-general was subsequently directed to make a re-survey in accordance with certain directions. The order for a re-survey did not bring the case within the provisions of the last paragraph of the third section of the act of 1864. That paragraph applies only to new surveys which may be ordered by the Circuit Court upon the decision of appeals from the District Court; but the order directing a re-survey was itself subsequently set aside, which left the survey before the Court upon the original order. After careful consideration of the several objections urged by counsel of the appellants in their very elaborate brief, we find nothing which would justify interference with the decree of the District Court. The case appears to have received great consideration from the learned judge of that Court, and we are satisfied with his conclusions. Decree affirmed. U. S. Circuit Court. (DISTRICT OF Oregon.) Decided July 8, 1878. IN THE MATTER OF THE APPLICATION OF (1) ALIEN. An alien to be entitled to admission to citizenship must first prove that he has behaved as a man of good moral character during all the period of his residence in the United States. (2) MORAL CHARACTER. What constitutes good moral character may vary in some respects in different times and places; bnt a person who commits perjury does not behave as a man of good moral character, and is not therefore entitled to admission to citizenship. (3) PARDON. A pardon is prospective, and not retrospective, in its operation; and while it absolves the offender from the guilt of his offense, and relieves him from the legal disabilities consequent thereon, it does not obliterate or wipe out the fact of the commission of the crime, so that it cannot be made to appear on an application to be admitted to citizenship. DEADY, J. William Spenser, an alien, applies to "be admitted to become a citizen of the United States," under sec. 2, 165 of the R. S. From the evidence it satisfactorily appears that he duly declared his intentions, and has continuously resided in the United States-the State of Oregon-at least since 1870. He is therefore entitled to be admitted to citizenship if it appears that during such residence "he has behaved as a man of good moral character," attached to the principles of the Constitution of the United States, and well disposed towards the good order and happiness of the same. Sec. 2, 165 supra, sub. 3. qualifiedly pardoned by the Governor, upon, as the pardon recites, the petition of sundry citizens of Wasco County, and because it appeared that there were doubts as to his guilt, and unless he was released from prison there was danger that he would lose his homestead. Upon this state of facts two questions arise (1) Has the applicant "behayed as a man of good moral character" within the meaning of statute? and (2) What is the effect of the pardon in this respect? In the first place, during what time is the behavior of the applicant open to consideration? The statute-supra-declares that "It shall be made to appear, to the satisfaction of the Court admitting such alien, that he has resided within the United States five * * at least, years * and that during that time he has behaved as a man of good moral character," etc. Is an alien who has behaved as a man of good moral character during the five years immediately preceding his application, but who had not so behaved during his residence in the United States prior thereto, entitled to admission? I think not. behavior of the applicant during all the time of his residence within the United States is material. The good of the country does not require, and it does not appear to be the policy of the law to promote the naturalization of aliens who have at any time during their residence in the United States behaved otherwise than as persons of good moral character. The citizenship of the country is sufficiently alloyed and debased by the presence of immoral natives without the addition of those born in foreign countries. The The applicant must not simply have sustained a good reputation, but his conduct must have been such as comports with a good character. In other words, he must have behaved-conducted himself- -as a man of good moral character ordinarily would, should, or does. Character consists of the qualities which constitute the individual; reputation, the sum of opinions entertained concerning him. The former is interior, the latter external. The one is the substance, the other the shadow. (N. Y. P. Code, 120; The proof shows that the applicant has resided in Oregon, near The Dalles, for more than eight years; that in 1876, and after he had declared his intentions, he was duly convicted in the Circuit Court of the State, for Wasco County, of the crime of perjury, committed by swearing falsely as a witness in a case in said Court in which he was a party, and sentenced to five years imprisonment in the penitentiary; that after being in prison fifteen months and eight days he was un-8 Barb. 603.) |