upon the same footing with private individuals." (U. S. v. Throckmorton, 4 Saw. 43.) It does not appear, that the United States has been pecuniarily injured by the alleged fraud. No injury, or damage, is alleged, or in any way shown. The land was for sale to any duly authorized preemptioner, at $1.25 per acre. Defendant paid the full amount of the purchase-money, and it went into the U. S. Treasury. The Government got all that it would have obtained from any other party. It does not appear, that anybody else had any rights, or wanted to purchase, or that the United States was under any obligation to patent the land to any other person. There is no possible pecuniary injury to complainant. The most that can be said, is, that a principle of public policy was violated, and, thereby, a moral wrong resulted by reason of the legal disqualification under the Pre-emption Act, of complainant to purchase. But the wrong was only malum prohibitum, not malum per se. It is by no means clear, that the demurrer ought not to be sustained on this ground, but it is unnecessary to so decide now, for in my judgment, it is not a case to be taken out of the rule established in the cases cited, of Throckmorton, and Vance. In view of the notorious liberality in favor of purchasers, not to say, looseness, with which the pre-emption laws have, ever since their adoption, been administered all over the Western States, to relax the rules, referred to in the authorities cited, especially where no actual pecuniary damage or injury has resulted, either to the Government, or private parties, and "re-try every case in which" the action of the Land-office, as well as "judgments, or decrees, rendered on false testimony given by perjured witnesses, or on contracts, or documents whose genuineness or validity was in issue, and which are, afterwards, ascertained, to be forged, or fraudulent," would open a Pandora's box of evils "far greater than any compensation arising from doing justice in individual cases. It would open the door to any party stimulated by malice, or other unworthy motive, who could upon ex parte and false statements, obtain the ear of the Attorney-General, to promote suits in the name of the United States, to the great vexation of honest, as well as, dishonest, pre-emptors; and to the great detriment of the public peace and prosperity. Again, the claim is stale. Although statutes of limitation do not run against the Government, yet, the staleness of the claim may be taken into consideration in determining, the question, whether a Court of equity should interfere and grant relief, where the United States, as well as a nat ural person, is a complainant. When the United States comes into a Court of equity as a suitor, it is subject to the defenses peculiar to that Court. (U. S. v. Tichnor, 8. Saw. 156; U. Š. v. Flint, 4 Saw. 58-9; Budger v. Badger, 2 Wall, 94; Stearns v. Page, 7 How. 829.) Under the State law, this suit, if between private parties, alone, would be barred within three years. (Manning v. San Jacinto Tin Co., 7 Saw. 430.) Six years elapsed between the issue of the patent, and the filing of the bill, and no averment is made to show that the fraud was not discovered, or by the exercise of ordinary diligence in the Land-office might not have been discovered, immediately after its consummation. The money received is retained, and no tender appears to have been made, nor is any offer to refund the money made in the bill. The United States, like an individual, when it comes into Court and demands equity, must do equity, or, at least, offer to do equity. It has received the full value of the land in money-the same amount that it would have received had the land been sold and patented to an admittedly qualified purchaser. It cannot keep the money, and, in a Court of equity, demand and receive a return of the land. To meet this point, and as a basis for a decree for forfeiture of the money, as a part of the relief demanded in the bill, the U. S. Attorney relies on Section 2262 R. S., which provides, that, "if any person taking such oath swears falsely in the premises, he shall forfeit the money which he may have paid for such land, and all right and title to the same." This is highly penal, and the only remedy, or rather punishment, other than an indictment for perjury, that appears to be provided by law for the wrong sought to be redressed. But the United States has come into the wrong forum to enforce this penalty. "It is a universal rule in equity never to enforce either a penalty or forfeiture." (2 Sto. Eq. Ju. Secs. 1319, 1494, 1509.) So, a bill of discovery will not lie in a case which involves a penalty or forfeiture. (lb.) As an answer on oath is not waived, this bill is, in that particular, a bill of discovery, and demurrable on that ground also. If the United States desires to enforce the penalties-the forfeiture of the money paid, and the land patented-provided for in Section 2262 R. S., cited, it must proceed in some appropriate mode at law, where the defendant will be entitled to a trial by a jury of the question as to giving false testimony. In my judgment, the demurrer should be sustained, and the bill dismissed, and it is so ordered. July 30, 1883. Pacific Coast Law Journal. VOL. XI. AUGUST 11 AND AUG. 18, 1883. Supreme Court of California. DEPARTMENT No. 2. [Filed July 27, 1883.] Nos. 25, 26. GEORGE B. CHESTER, RESPONDENT, v. THE BAKERSFIELD TOWN HALL ASSOCIATION, APPELLANT. ESTOPPEL. The evidence is held sufficient to justify the findings against appellant on the issues of estoppel. ERROR-FINDING. As the Court seems to have found the facts which defendant sought to elicit from a witness by questions to which objections were made by plaintiff and sustained by the Court, it is clear that if said rulings were erroneous defendant was not prejudiced thereby. EVIDENCE-MOTION. A motion to strike out evidence on the ground that it is irrelevant and immaterial ought not to be granted unless it is clearly irrelevant and immaterial. UNDERTAKING APPEAL-JUDGMENT-NEW TRIAL. One undertaking, where appeals are taken both from the judgment and order denying a new trial, is sufficient. Appeal from Superior Court, Kern County. C. C. Cowgill and Stetson & Houghton for respondent. By the COURT: The plaintiff alleges in his complaint that he is the owner in fee-simple of certain premises described in his complaint, and that at the time of the filing of said complaint he was, and for more than three years immediately preceding the filing thereof had been, in the actual, quiet and exclusive possession of said premises, and that the defendant claims some right, title or interest therein adverse to the plaintiff, and that said claim of the defendant is without any right, etc.; wherefore plaintiff prays to have said claim determined, etc. The defendant, in its answer, denies that the plaintiff is the owner, or that he and those under whom he claims, have been for more than three years, or then were, in actual, peaceable, quiet possession of said premises, but alleges that the defendant has been in the open, notorious, exclusive and adverse possession, with claim of title, ever since the 9th day of November, 1871. The defendant also alleges that the plaintiff is estopped both by judgment and in pais. The facts which it is claimed constitute said alleged estoppels are set out at length in said answer. The Court found, upon sufficient evidence, that on the 23d day of October, 1869, one Thomas Baker, who then claimed to own said premises, conveyed the same by deed to the plaintiff, who, on the 3d day of January, 1872, conveyed to Julius Chester, who, on the 18th day of September, 1878, conveyed to one Fisher, who, on the 29th day of June, 1880, conveyed to the plaintiff. On the 12th day of December, 1877, said Baker obtained a patent of said premises from the State. The findings as to the foregoing facts are not attacked. But counsel for appellant in their brief rely, (1) on an estoppel in pais; (2) by judgment; and, (3), the Statute of Limitations as a bar to the action. Upon each of these issues it is claimed that the evidence is insufficient to justify the findings of the Court. We are satisfied that there are not uncontroverted facts sufficient to constitute an estoppel in pais. The judgment in the case of The Bakersfield Town Hall Association v. Julius Chester, which was commenced more than a month after said Julius had conveyed the premises to Fisher, who subsequently conveyed to the plaintiff herein, cannot operate as a bar to this action. As to the bar of the Statute of Limitations, it is sufficient to say it was not established by evidence free from substantial conflict. No objection was made to the testimony of Julius Chester until after it was all in, and then a motion was made to strike out a part of it on the ground that it was irrelevant and immaterial. A motion to strike out on that ground ought not to be granted unless the evidence is clearly irrelevant and immaterial. The evidence which the Court refused to strike out is not, in our opinion, clearly of that character. The Court seems to have found the facts which the counsel for defendant sought to elicit from the witness, Brundage, by questions to which objections were made by plaintiff's counsel and sustained by the Court. It is therefore clear that if said rulings were erroneous, the defendant was not prejudiced thereby. The practice of filing but one undertaking where appeals are taken, as in this case, both from the judgment and order denying a new trial, is about as well settled as any question of that kind can be, and we do not think that it should now be treated as an open one. Judgment and order affirmed. IN BANK. [Filed July 27, 1883.] BATCHELDER ET AL., PETITIONERS, v. WILLEY, SURVEYOR-GENERAL, RESPONDENT. LAND CONTEst-Judgment-NOTICE-CERTIFICATE OF LOCATION-FORFEITURE--SURVEYOR-GENERAL. Mandate judgments were entered December, 1879, in favor of petitioners, following contests referred by SurveyorGeneral to the District Court. November, 1882, other parties, P and K, caused certified copies of said judgments to be filed in the office of Surveyor-General, and made applications to purchase the lands, which applications were filed January, 1883. March 2, 1883, petitioners filed in office of Surveyor-General copies of the judgments and demanded an approval of their applications, which was refused. A writ of mandate is prayed to procure such approval. Held, petitioners forfeited the rights acquired under their judgments by not paying twenty per cent. of the purchase-money within fifty days after the issuance of certificates of location to them. Mandamus. Stetson & Houghton for petitioners. SHARPSTEIN, J., delivered the opinion of the Court: In 1877 the petitioners filed in the office of the SurveyorGeneral of the State applications to purchase certain school lands in Mendocino County. Within sixty days thereafter other applications to purchase the same lands were filed, and the contests were certified to the District Court of the |