bound unto Domingo Peralta in the sum of one thousand dollars, for the payment of which, well and truly to be made and done, we bind ourselves,our heirs, and assigns, firmly by these presents. Sealed 108 with our seals, and dated this 22nd day of May, 1850. The condition of the above obligation is such, whereas the above-bounden Romero and Garcia have appealed to the Supreme Court from the judgment and decision of the district court for the county of Santa Clara, at the April term, 1850, in a suit wherein said Peralto was plaintiff, and said Romero and Garcia def'ts, in which suit judgment was rendered for said Peralta for the possession of the land claimed in his petition, and sixty dollars damages and costs of suit, against said Romero and Garcia: Now, should said Romero and Garcia well and truly prosecute their said appeal to final judgment in said Supreme Court, pay all costs and damages that may be awarded or adjudged against them in said court, and obey, fulfil, and comply with all orders, decrees, and requisitions of said court that may be made in the premises, then this bond to be void, else to remain in full force. I, H. C. Melone, clerk of the county of Santa Clara, do hereby certify that I have prepared the foregoing transcript in said cause, and that I have carefully compared the same with the original papers and records, assisted by a competent and disinterested person, and find it to be a true and perfect transcript, in words and figures, of all the papers, records, and proceedings in any manner connected with said cause, and that this transcript contains thirty-one pages. Given under my hand and private seal (there being no seal [L. S.] of office yet provided,) at office, this 11th day of June, A. D. 1850. H. C. MELONE, Clerk. I, Charles S. Fairfax, clerk of the Supreme Court of the State of California, do hereby certify that the foregoing is a true and correct copy of the original transcript of the above entitled cause, and now of record in my office. Witness my hand and the seal of the court, affixed Endorsed Filed March 30, 1857. J. A. MONROE, Clerk, It appears from the espediente on file in the archives that, on the 18th day of January, 1844, the brothers Romero petitioned the governor in the usual form for a grant of land, being a sobrante lying between the ranchos of Moraga, Pacheco, and Welsh. This petition was by a marginal order referred to the hon. sec'y for his report. The secretary referred the papers to the 1st alcalde of San José, with directions to summon Moraga, Pachero, and Welsh, hear their allegations, and return the papers to the office. On the 1st February, 1844, the 1st alcalde reports that the owners. of the lands bounded by the tract have been confronted with the petitioners, and that the former are willing and desirous that the land be granted. He adds that it had come to his knowledge that one Francisco Soto claimed the tract some six or seven years ago. But as he had never used or cultivated it, the petitioners appeared to him to be entitled to the favor they ask. 112 On the 4th February, 1844, Manuel Jimeno, the sec'y, reports to the governor that, in view of the report of the 1st alcalde, there would seem to be no obstacle to making the grant. On this report of the secretary the governor makes the following order: "Let the judge of the proper district take measurement of the unoccupied land that is claimed in presence of neighbors, and certify the result, so that it may be granted to the petitioner." "Micheltorena." On the 21st March, 1844, the claimants addressed a petition to the governor representing that, owing to the absence of the owners of the neighboring lands, the judge of the pueblo of San José had been unable to execute the superior order (above recited,) and soliciting that his excell❜y would grant the tract to them, "either provisionally or in such a way as he should deem fit, while there was yet time for planting," &c. On this petition Jimeno reports (March 23d, 1844,) that the original order should be carried into effect as to the measurement of the land, and that " as soon as that was accomplished Señor Romero can present himself with Señor Soto, who says he has a right to the same tract." The governor thereupon made the following order: "Let everything be done agreeably to the foregoing report."-"Micheltorena. The above documents constitute the whole expediente on file in the archives. 113 From the documents produced by the claimants from the files of the alcalde's office, it appears that on the same day, March 23rd, 1844, Jimeno communicated to the alcalde the order of the governor, that the sobrante solicited by the Romeros should be measured, and that if it should be necessary a measurement of the adjoining ranchos should also be made, with the understanding that the parties who should become "agraciados" should bear the expense. It is evident that up to the date of the last order of Micheltorena, no grant of the land had issued. That, pursuant to the recommendation of Jimeno, the governor declined to make even a provisional grant, as solicited, and the final action in the matter was deferred until a measurement should be made, and until Romero and Soto should present themselves. Jimeno does not seem to have finally adopted the opinion of the alcalde, that Soto had forfeited his rights to the land, for he recommends to the governor, as we have seen, that the land should be measured without delay, and that then "Romero should present himself, joined with Señor Soto, who says he has a right to the same land.” In this recommendation the governor concurs. 114 There is certainly nothing in these proceedings which indicate that the governor had finally determined to grant the land, tho' it is evident that he regarded the application with favor. Still less can any of the orders made by him be construed to import a present grant. On the contrary, it is clear that the governor refuses to make even a provisional grant, but insists that a measurement shall first be made, and then that Romero and Soto shall appear before him, evidently with a view of determining the rights of the latter. The subsequent proceedings, as shown by documents exhibited by the claimants, confirm this view. On the 15th January, 1847, Romero and Garcia, the present claimants, appeared before John Burton, the alcalde of San José, and execute a paper in the presence of the alcalde and two witnesses, reciting a sale by Romero to Garcia of one-half the land, and stipulating that both parties should remain subject to the final result, if the government grant it in ownership, "and if the contrary should be the case, then Garcia should lose equally with Romero, without any right to reclaim the consideration paid.' This paper is signed by the parties, the alcalde, and the witnesses. On the 28th May, 1847, José Romero addressed a petition to 115 John Burton, alcalde of San José, presenting that as early as 1844 an order from the former government had been sent to the alcalde's court requiring a measurement of the land called "Juntas." That such measurement had not yet been made. He therefore solicits the alcalde to give him a testimonial of the reports which, in the year 1844, were sent to the government, "so that we can be granted said land." The alcalde, in a marginal order, directs that the land should be measured according to the original order of the supreme government. In the margin of the order transmitted by Jimeno, under date. March 23d, 1844, the alcalde writes: "Be it done accordingly on the 9th April, 1847. The interested parties will proceed to take possession of the mentioned land according to the order of the government. I further order that in case any bordering land-owner demand it, a mensuration of his land be ordered. [REC. CLXXX, D. T. 1862 ]—4 "JOHN BURTON, J. P.” It appears, moreover, that about two months before the date of their last petition, viz, on the 31st March, 1847, José Romero had addressed a petition to the same alcalde, representing that in some years before he had solicited a piece of land in the Cañada de San Ramon, and bordering upon lands of Don M. Castro, and that his excel116 lency had ordered the lands of Castro to be measured, which had never been done. The petitioners further stated that they were two brothers, with a numerous family, and were without any piece of land whatever to raise cattle; they therefore begged the alcalde to provide for them as soon as possible, that they might retain and locate their stock. The alcalde, on the 5th April, orders that the fulfilment of the superior order should be at once proceeded to. The entry in the marginal order transmitted by Jimeno was made on the Romero's petition of the 31st March, and not on that of the 28th May, above referred to, for it directs the measurement to be proceeded to on the 9th April. And finally, on the 27 Dec., 1847, H. S. Demick, then alcalde, makes an order in which, after reciting that disputes as to the boundaries existed between the Romero and Domingo Peralta, he directs that the boundaries be established and adjusted in the manner specified in the order of the governor dated 23rd March, 1844. I have stated the contents of these various documents with some particularity, because an attempt has been made since the rejection of the claim by the board to show by parol that a final grant issued to the Romeros, which has been lost. 117 We have seen that the last document in the expediente is the order of the governor of the 23rd March, 1844, adopting Jimeno's recommendation that a measurement should be made before issuing the final grant, or even a provisional one, as solicited by Romero-and even then it does not seem that the grant was certainly to be made, for Romero and Soto were to "present themselves," evidently for the purpose of enabling the governor to ascertain their respective rights. Nothing further seems to have been done either by the government until 1847. On the 31st March of that year we find the Romeros representing to the alcade that the governor had some years before ordered the land to be measured, which had not been done; and that they were without any piece of land whatever, and they beg the alcade to provide for them. The alcade thereupon directs that the superior order of March 23, 1844, be proceeded to. On the 28th May, 1847, the Romeros again petition the alcade, representing that as early as 1844 the governor had sent to the alcade's court an order requiring a measurement of the land. They therefore ask a testimonial of the reports and orders in his office, "so that we may be granted the land." The alcade again directs. 118 the superior order of March 23d, 1844, to be complied with. And on the day following a declaration is made before the alcade by Antonio M. Pico that Don J. Moraga and Don L. Pacheco, the colindantes, had declared that for their parts the surplus of land which does not belong to them "could be granted to the Romeros.” And, finally, the deed from Romero to Garcia of January 15th, 1847, expressly stipulates that both the parties to it should remain subject to the final result, "if the government grant it in ownership, and if the contrary should be the case, then Garcia should lose equally with Romero, without reclamation." These documents appear to me to establish beyond doubt that all action of the government on the application of the Romeros terminated with the order of March 23, 1844, directing the measurement as an indispensable preliminary to a grant, either final or provisional. That during the year 1847 the petitioners made several attempts to have that measurement effected, but apparently without success; and that up to December, 1847, neither they nor any one else pretended that the order of March 23, 1844, was not the last act of the government in the premises. 119 The parol testimony offered to prove that a grant was issued will be briefly adverted to: C. Brown swears that the Romeros have lived on the rancho since 1840, and that he always understood they had a grant. He does not pretend to have seen it. James M. Tice swears that he has searched for the title papers but has been unable to find them. J. J. P. Mesa saw a bundle of papers in Romero's hands on his return from Monterey, in 1844. The bundle was not opened, but Romero said they were his title papers. He subsequently saw Micheltorena's order for the measurement of the land. He does not pretend to have seen any grant. It is to be observed that Mesa was examined before the board and did not mention this circumstance, and that he can neither read nor write. Inocencio Romero, who disclaims any present interest in the land, swears that he had a grant, that he gave it to Mr. Tingley to be presented to the board, and that since then he has not seen it. He also 120 states that the grant was made by Micheltorena a short time after he arrived in the country, and that Arce, who was then his secretary, delivered it to him. The espediente, however, shows that Jimeno was the secretary at least until March 23, 1844; and as it is clear that at that date the grant. was suspended until a measurement should be made, the title papers seen by Mesa in the hands of Romero on his return from Monterey, in 1844, must have been only the papers now produced. The testimony of Mr. G. B. Tingley is the only evidence in the cause which approaches proof that a grant issued. This witness swears that on the trial of a suit between Domingo Peralta and the Romeros a grant from Micheltorena to the latter was produced in evidence; that the petition was for a sobrante; that the signatures were genuine, and that one Sandford took the papers and he has never seen them since. On his cross-examination he states that the papers produced were the original petition and the marginal order of reference; an information signed by A. Pico; then a decree of concession; and final, a title in form, with a condition that the grant should not interfere with the adjoining grants. If these papers were produced they must all, with the excep |