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year after, I brought those same papers back to Fort Ross and delivered them to Bennitz.

3d question. Did you see Bennitz on the land before he made the map you speak of? If so, state particulars.

Answer. I did not; I don't remember that he ever told me he had been on the land.

4th question. Did you ever see any other grant of land that Bennitz had, or ever hear him say he had one?

Answer. I never did.

5th question. What are your means of knowing that Bennitz has continued to claim the land referred to?

Answer. He has always spoken to me, saying he would do so and so with the land. Think I have heard him speak to other persons on the subject, but do not recollect who they are.

ERNEST RUFUS. Sworn to and subscribed before me, February 28, 1856. W. H. CHEVERS,

U. S. Commissioner.

It is hereby stipulated, that the above deposition be considered in evidence as if taken before and read on the hearing.

J. CLARKE,

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District Court of the United States, northern district of California.

WILLIAM BENNITZ

VS.

THE UNITED STATES.

Claim for the tract of land called Breisgan.

John A. Sutter, being duly sworn, deposes and says, that William Bennitz, claimant in the above entitled cause, was one of the persons who had petitioned Governor Micheltorena for land, in the year 1844, and upon whose petitions affiant had reported favorably to said governor, [and that said Bennitz was one of the persons to whom the general grant of said Micheltorena (in evidence in the case of Samuel J. Hensley, in this court,) applies, and in whose favor the said grant was intended to operate.

J. A. ŠUTTER. [SEAL.] Sworn to and subscribed before me, this first day of April, A. D. 1856.

[SEAL.]

E. DUPRÉ,

Notary Public in and for Yuba county, California.

It is hereby stipulated, that the within deposition of John A. Sutter be considered in evidence in case No. 194, claim of William Bennitz vs. The United States. The district attorney, at the same time, excepts to the competency of so much of the foregoing affidavit as is included in brackets, on the ground that the same is a statement of a legal conclusion and opinion, and not a statement of facts.

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The appellant in this case claims under the general grant by Governor Micheltorena, on the 22d December, 1844, which has already been considered and passed upon by this court in the case of S. J. Hensley.

It appears in evidence that the present claimant was one of those in whose favor Capt. Sutter had reported, and for whose benefit the general grant was made.

It further appears that the claimant in 1845 placed a tenant upon the land, by whom a portion of it was cultivated, and who continued to reside upon it until the summer or fall of 1846, when he was killed by the Indians.

There seems no reason to suppose that the claimant ever abandoned his grant, and under the ruling of this court in the case of Hensley, we think the claim should be affirmed.

April 5, 1856.

WILLIAM BENNITZ

vs.

THE UNITED STATES.

Decree of Confirmation.

Decree No. 194.-Stated term, April 7th, 1856.

Appeal from the final decision of the commissioners to ascertain and settle private land claims in California.

This cause coming on this day to be heard upon appeal from the decision of the commissioners to ascertain and settle private land claims in the State of California, under the act of Congress approved March 3d, 1851, upon the transcript of proceedings and decision, and the papers and evidence on which said decision was founded, and the pleadings and evidence filed in this court; and it appearing to the court that said transcript was duly filed according to law, and counsel having been heard on the part of the United States, and for claimant, it is now considered, ordered, adjudged, and decreed by the court, that the said decision of the commis[REC. CCLIX, D. T., 1857.]—3

sioners is erroneous, and that the same should be and hereby is in all things reversed; and it is hereby further ordered, adjudged, and decreed that the claim of the said William Bennitz, appellant, to the tract of land called "Breisgan," is valid, and that the same should be and hereby is confirmed.

The land of which confirmation is hereby made is of the extent of five square leagues, and no more, and is the same tract the boundaries whereof are set forth in the petition of claimant to the governor, and which are delineated in the diseño, a copy of which OGDEN HOFFMAN, JR. U. S. Dist. Judge.

is on file in the case.

Filed April 7th, 1856.

Order.

JNO. A. MONROE, Clerk.

At a stated term of the district court of the United States of America for the northern district of California, held at the courtroom, in the city of San Francisco, on Wednesday, the first day of April, in the year of our Lord one thousand eight hundred and fifty-seven.

Present, the Honorable Ogden Hoffman, district judge. THE UNITED STATES

VS.

WILLIAM BENNITZ.

D. C. 194.-L. C. 626.

In this case, on application of the U. S. attorney made in open court, it is ordered by the court that an appeal in behalf of the United States from the final decision of this court rendered at the present term be and the same is hereby granted, and that a certified transcript of the pleadings, evidence, depositions, and proceedings in the said cause be sent to the Supreme Court without delay. Filed April 1st, 1857.

JOHN A. MONROE, Clerk.

I, John A. Monroe, clerk of the district court of the United States for the northern district of California, do hereby certify that the annexed pages, from one to thirty-four inclusive, contain a full, true, and correct transcript of the record on file from the board of land commissioners, together with the pleadings, depositions, orders, opinions, and decree filed in this office, in the case entitledTHE U. S., Appellant,

VS.

WILLIAM BENNITZ, Claimant.

In testimony whereof, I have hereunto set my hand and affixed the seal of the said court, this fourth day of November, [SEAL.] one thousand eight hundred and fifty-seven, and of the independence of the United States the eighty-second. JNO. A. MONROE, Clerk.

Filed 5th March, 1858.

SUPREME COURT OF THE UNITED STATES.

No. 40.-DECEMBER TERM, 1858.

THE UNITED STATES, APPELLANT,

VS.

MICHAEL C. NYE.

The appellee claims four square leagues of land on the Sacramento river, the boundaries of which are clearly defined, and the premises are also so definitely laid down on the map referred to in the proceedings to obtain the grant, that there can be no difficulty about the location on the survey thereof.

The case is also free from all difficulty as to occupation by the claimant, who was the original grantee. The record shows, that in the fall of 1845 he lived on the place, in a house built by himself, and had five or six hundred head of cattle and tame horses. upon it. He was subsequently driven away by the Indians, but under circumstances which preclude all idea of abandonment, and which establish a full justification. Fremont vs. United States, 17 How., 560; United States vs. Reading, 18 How., 1. (Record, 3, 4, 5, 6.)

The title of the claimant is derived from the Mexican authorities, under a grant familiarly known as the general title.

The proceedings to obtain the grant, duly proved to be genuine, are given in evidence and consist of the following:

1st. The petition of Nye to the governor for the grant, dated December 22, 1843.

2d. The decree of the governor, Micheltorena, ordering the secretary to take information and report, dated December 31, 1843. 3d. A reference, for information, by the secretary, Jimeno, to Capt. Sutter, commissioner of the frontier of the Sacramento, dated January 4, 1844.

5th. The report of Captain Sutter that the said land was unoccupied, &c., dated January 27, 1844.

GIDEON, Printer, 511 Ninth st., Washington, D. C.

These are followed by the document known as the general title, signed by Governor Micheltorena, dated December 22, 1844, the genuineness of which is established by the testimony of said Sutter. (Record, 11, 12, 15.) And it is also proved that a copy of said general title, duly certified, was delivered by said Sutter to the claimant on the 8th day of June, 1846. (Record, 10, 11.)

On the part of the appellee, it is insisted that the document designated the general title is, in legal effect, a grant by the constituted authorities, and that the claimant was one of the persons for whose benefit it was made, and by virtue of it was invested with a title to the premises claimed by him.

1. No doubt can exist of the power of Governor Micheltorena, at the time it bears date, to make the grant. The insurrectionary movement which subsequently compelled him to leave the department, and substituted Pio Pico in his place, without authority of law, was adverted to by this court in the recent case of The United States vs. Cambuston, 20 How., 59. Micheltorena continued to occupy his position as governor, and to exercise all its functions, until the spring or fore part of the summer of 1845. Although embarrassed by the opposition to his administration, made by the native California party, he exercised the full functions of the office until several months after this grant was made. Ib.

2. The document is a grant; not a mere promise to grant in futuro, but is itself a grant in presenti. The words are: "In the name of the Mexican nation, I confer on them and their families, by these letters, the property of the respective tracts of land," &c.; "and that it may be duly evidenced in all times, I give this document, which will be acknowledged and complied with by all authorities, civil and military, of the Mexican nation, in this and other departments," &c.

Stronger or more explicit language of grant could not be used. Two objections were urged on the hearing of the case below, and mainly relied on to defeat this claim, namely: 1st, that no person is named in the document as grantee; and 2d, that the alleged grant was not delivered to the claimant under it.

As to the objection based on the want of grantees specified by name in the grant we reply:

1st. The law has nowhere rendered it indispensable that the name of the grantee should be inserted in a grant. Even under the technical rules of the common law-a rule far more strict and technical than that of the civil or the Spanish law-it is well settled that a deed or grant may be good without inserting the name of the grantee therein.

4 Bacon, Tit. Grant (C.)

It is true the parties are usually described by their christian and surnames, but this is not absolutely necessary. It is enough that the party can be identified and distinguished from all others.

2 Hilliard on Real Property, 350.

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