That a Pueblo of some kind existed at the site of the present city of San Francisco upon the cession of the country from Mexico; that such Pueblo possessed proprietary rights in certain lands, and that the city succeeded to such rights, are no longer open questions for discussion or judicial examination. They have been determined by repeated decisions of the federal courts; and however much counsel may be disposed to question the original soundness of those decisions, the conclusions reached must be received as established facts, and all the legal consequences flowing from them accepted. The obligation which the United States assumed by the treaty with Mexico was to protect all rights of property acquired under the laws of that country. The property rights of Pueblos, equally with those of individuals, were entitled to protection, and in the legislation of Congress provision was made for their investigation and confirmation. The right and power of the Government in the execution of its treaty obligations to protect the claim of the city of San Francisco, as successor of the Pueblo, were superior to any subsequently acquired rights or claims of the State or of individuals. (See Teschmacher vs. Thompson, 18 Cal. 28.)

It is undoubtedly true that until the confirmation of the city's claim the Government retained the right to control the use and disposition of the Pueblo lands, where, by action of the officers of the Pueblo, or of the city, its successor, they had not been previously vested in private proprietorship; and, perhaps, had Congress in terms so declared, the swamp lands within the limits of the Pueblo may have been alienated to other parties. There is no occasion, however, to express any opinion on this point, as the only Act of Congress to which reference is made, that of September 28, 1850, was clearly not intended to apply to any lands then held by the United States charged with the equitable claim of others, which they were by treaty bound to protect.

Our conclusion is that the premises in controversy constitute a part of the tract confirmed to the city by the decree of the United States Circuit Court, entered on the 18th of

May, 1865. That decree became final by the Act of Congress passed on the 8th of March, 1866, which was followed by a dismissal of the appeal taken to the Supreme Court.

The defendant has shown that the parties, through whom he claims, were in peaceable, actual possession of the lands in controversy at the time the Van Ness Ordinance took effect, and on the passage of the confirmatory act of the Legislature of the State, and had made valuable improvements upon it, and thus acquired the title of the city. He has thus brought himself in connection with a title superior to that of the plaintiff. It follows that judgment must be entered in his favor.

The suggestion that the survey of the Pueblo claim forwarded to the Land Department at Washington, follows the banks of Mission Creek, can not have any weight in the case. The decree confirming the claim of the city fixes the bay of San Francisco at ordinary high water mark as its eastern boundary, and this line can not be changed by the SurveyorGeneral, or any department of Government. The Act of Congress confirms the claim as described in the decree, and also relinquishes all interest of the United States to the lands embraced by it, subject to certain exceptions and reservations not material to be now considered. Any patent of the United States which may hereafter be issued to the city from the Land Department at Washington can neither add to or take from the title already vested in the city and those claiming under it. The confirmation approved and affirmed by the Act of Congress will control any patent which the Department may issue. A patent of the United States operates, as was held by the Supreme Court, in a recent case, in two ways: "It is a conveyance by the Government," said the court, "when the Government has any interest to convey; but where it is issued upon the confirmation of a claim of a previously existing title, it is documentary evidence of the existence of that title, or of such equities respecting the claim as justify its recognition and confirmation. The instrument is not the less efficacious as evidence of previously existing rights, because it also

embodies words of release or transfer from the Government." (Langdeau vs. Hanes, 21 Wall. 521.) It was a legislative confirmation of which the court was here speaking, and in the case of San Francisco we have both a judicial and a legislative confirmation, the latter sanctioning and affirming the former. By it the title of the city and her alienees became perfect, and no patent can ever disturb or strengthen it. And yet a patent will be of great value, as it will enable parties to maintain their titles in the tribunals of the country without other proof of the claim of the city and its confirmation, and it will also remove doubts as to the boundaries of the tract where their establishment rests in the uncertain recollection of witnesses as to places which are fast becoming obliterated by the improvements of a constantly increasing population. But it can not by any possibility make a creek running into the bay a part of the bay itself, and it is not to be supposed that any suggestion of the kind will be heard with favor by those to whom the duty of issuing a patent is entrusted.

Supreme Court of Nevada.

STATE vs. ROVER.

1. DUTY OF CLERKS IN MAKING UP TRANSCRIPT IN A CRIMINAL CASE.—A transcript on appeal should not be encumbered with any matter not authorized by Sections 450 and 480 of the Criminal Practice Act.

2 PRELIMINARY EXAMINATION-HOW CONDUCTED-WHEN STATEMENT OF DEFENDANT 18 ADMISSIBLE IN EVIDENCE.-The justice of the peace may select persons to write down the testimony of the defendant, and if the statement is thus written down in accordance with the statute it is admissible, on the trial of the case, against the defendant.

3. DECLARATIONS OF THIRD PERSONS-WHEN ADMISSIBLE.-A prosecuting witness, having been accused by the defendant of the very crime for which the defendant was indicted, was allowed upon the trial, in explanation of his own conduct, to give in evidence the declarations of third persons which induced him to make a complaint before a magistrate accusing the defendant with the commission of the crime. Held: no error.

4. VERDICT IN A CRIMINAL CASE MAY BE RECORDED ON SUNDAY.-The statutes of this State provide that courts my be held on Sunday "to receive a verdict or discharge a jury." This authorizes the court to have the verdict recorded and to make such orders as are incident to the power given by the statute.

5. CIRCUMSTANTIAL EVIDENCE.-The court refused to give an instruction copied from wills on circumstantial evidence. Held: not erroneous.

The defendant was convicted of murder in the first degree. The appeal was taken from the judgment and from the order of the court refusing to grant a new trial.

T. W. W. Davies, for appellant.

John R. Kittrell, Attorney-General, for respondent.

By the court, HAWLEY, C. J.:

When the transcript on appeal in this case was filed in this court it contained over 800 pages. Upon the oral argument it was ascertained that the clerk, at the request of counsel, had, with other irrelevant matter, inserted all the testimony submitted at the trial, although not embodied in any bill of exceptions.

At the close of the argument we made an order that the transcript be returned to the clerk of Washoe County with instructions to eliminate therefrom all matters contained therein that were not, by the provisions of Sections 450 and 480 of the Criminal Practice Act (1 Compiled Laws, 2075, 2105), made part of the record in a criminal case. It came back with only 115 pages, and still contains an affidavit made by T. W. W. Davies, of counsel for appellant, setting forth what is claimed to have been an irregularity upon the part of the counsel for the State in his closing argument to the jury, and the instructions given to the jury by the court of its own motion.

These ought not to have been included in the transcript, because not embodied in any bill of exceptions.

After what has been said by this court in the State vs. Forsha (8 Nev. 137); State vs. Burns (8 Nev. 251); State vs. Huff (11 Nev. 17); State vs. Larkin (11 Nev. 314); State vs. Rover (11 Nev. 343); State vs. Ah Mook (12 Nev. 369); and State vs. Sam Mills (12 Nev. 401), there is certainly no excuse

in encumbering the transcript on appeal with any matter not authorized by Sections 450 and 480 of the Criminal Practice Act. If the county clerks will remember that it is their duty not to insert anything in the transcript, whether asked for by counsel or not, except as provided for by said sections, and that they are not entitled to any pay for services performed in copying papers, documents, or statements that are not made any part of the record in a criminal case, they would hereafter save themselves some trouble and the counties considerable expense, to say nothing of the unnecessary task so often imposed upon this court of sifting the tare from the wheat, and expelling the chaff from the transcript.

The points made by appellant's counsel, that are based upon the record, will be noticed in their regular order:

1. The question of jeopardy and the power of the court to grant a new trial, although not asked for by the defendant, is settled by the former decision in this case. (State vs. Rover, 10 Nev. 388.)

2. The court did not err in admitting the voluntary statement of the defendant as taken down on his preliminary examination before Job Davis, a justice of the peace in Humboldt County. The justices of the peace can select clerks ad libitum to perform the clerical labor of writing out the testimony taken upon the preliminary examination, but must see that they correctly perform the duty. In this case the statement was written by clerks under the direction and in the presence of the justice. It was read by one of the clerks, at the request and in the presence of the justice, to the defendant. It was corrected in every particular desired by the defendant. The defendant, before making the statement, was fully advised by the justice of all his rights. In short, the record shows that Sections 152, 154, 155, and 156 of the Criminal Practice Act (1 Compiled Laws, 1780, 1782, 1783, 1784) were in every respect fully complied with.

In the absence of any evidence tending to show that the witnesses were not excluded pending the examination of defendant, as provided for in Section 158 (1 Compiled Laws, 1786), we can not presume that the justice did not conform to this provision of the statute.