that idea. The reference to the certificates in connection with the charge of the embezzlement of the money is surplusage. The indictment is not bad for duplicity under sec. 153 of the criminal practice act. The demurrer should have been overruled on both grounds. The defendant appeals from the order of the court below, refusing to discharge him upon sustaining the demurrer. The record shows that the court, upon the motion of the prosecution, ordered the case to be resubmitted to the grand jury which should next meet after the order was made. I am satisfied that neither of these is an appealable order. The order refusing to discharge is in substance the order resubmitting the case which immediately followed it, and was right and proper if the order of resubmission was right and proper. It has been ruled, and no doubt correctly, that the statute does not give the defendant the right to appeal from such an order, and that it can only be reviewed on an appeal from the final judgment. Subd. 3 of sec. 360, which allows a defendant to appeal " from an order made after judgment affecting the substantial rights of the party," applies only to orders made after final judgment, which of course could not be reviewed on an appeal from the judgment: People v. Clark, 42 Cal. 622. This point was not raised on the appeal. It ought not, however, on that account, to be passed over in silence and this appeal allowed to become a precedent for others from like orders. It is understood that the prosecution as well as the defendant desires a construction of sec. 196, under the provision of which the order appealed from was made. The section referred to enacts: "If the demurrer is allowed, the judgment is final upon the indictment demurred to and is a bar to another prosecution for the same offense unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, directs the same to be resubmitted to the same or to the next succeeding grand jury. It will be seen by the record that the defendant was indicted on the fourteenth day of April, 1883; was arraigned and filed his demurrer on the seventeenth day of May following. For some reason, presumably satisfactory to all parties concerned, the argument on the demurrer was postponed until the sixth day of October, when it was argued and submitted, taken under advisement, and finally disposed of on the tenth day of December, 1883. So that at the time the demurrer was allowed, the grand jury which found the indictment, and the next succeeding one to that, had been discharged. For this reason the defendant insists that the order of resubmission was erroneous, and consequently the order refusing to discharge the defendant was erroneous. In our opinion, the words "next succeeding grand jury" refer back to the time when the judgment on this demurrer is made and entered, and the meaning is that if the order of resubmission is made it must be to the first grand jury that meets after the demur rer is allowed. This view is strengthened by the reference made in sec. 198, which provides that "if the court directs that the case be resubmitted, the same proceedings must be held thereon as are prescribed in secs. 187 and 188. These sections refer to the proceedings on a motion to set aside the indictment, and sec. 187 provides among other things, "if the motion is granted, the court must order that the defendant, if in custody, be discharged therefrom; or if admitted to bail, that his bail be exonerated, or if he has deposited money instead of bail, that the same be refunded to him, unless it.directs that the case be resubmitted to the same or another grand jury. If the construction contended for by the defendant should prevail, then in every case of a defective indictment it would only be necessary for the defendant to avoid arrest, or get the hearing or decision upon a demurrer postponed until after the discharge of the grand jury next succeeding the one which found the indictment, and he has placed as effectual a bar to any further prosecution for that offense as a trial and verdict would be. We do not think this was the intention of the legislature; nor do we think the language used demands that we should so interpret it. Construing the sections referred to together, we think the plain intent is that in case the court should, for reasons satisfactory to itself, deem it advisable to resubmit a case to a grand jury, it should improve the first opportunity presented to do so, and not keep a defendant in custody or on bail for an indefinite length of time. There is no absolute rule of construction that compels us to refer the clause "next succeeding grand jury," in sec. 196, to the nearest word that might be an antecedent. The relative may be referred to such antecedent as will give the clause a sensible and reasonable construction: 10 M. & W. 728. The judgment of the court below in sustaining the demurrer is reversed and the case is remanded to the third district court, with directions to that court to overrule the demurrer and allow the defendant to plead to the indictment. The order of the court below in refusing to discharge the defendant is affirmed. TWISS, J., concurred. HUNTER, C. J., dissented from the judgment of reversal, and concurred in the judgment affirming the order of the court below. SUPREME COURT OF WASHINGTON TERRITORY. BRAGUE v. SCHOFIELD ET AL. July Term, 1883. "OREGON DONATION ACT," TITLE UNDER.-Under this act, by which there "is granted' to every man answering to a certain description, or if married, to him and to his wife in equal parts, a tract of land of specified area, upon certain prescribed conditions of selection, and in consideration of residence and cultivation for a certain period, the United States holds the position of seller and the donee that of a purchaser. As soon as the necessary selection has been made, and the prescribed residence and cultivation completed, the transaction is closed, so far as the sale is concerned. Final proof is no part of the consideration which the grantee gives, but is merely evidence to satisfy the land office that the right of the grantee is perfect, and entitles him to a patent. The act, and not the patent, works the transfer of title. The patent is formal and solemn evidence, and when issued relates back as of the date when a fit grantee, rendering full consideration, had appeared. Title under this donation act is always complete before a patent issues, and the patent issues by virtue of a title complete, and not otherwise. THE SAME PARTITION BY MINORS ACQUIESCENCE ESTOPPEL.-Previous to 1853, Amos Short, who was married, had duly selected, under the Oregon donation act, a tract of land, which is the subject-matter of the present controversy, and with his wife had resided upon and cultivated it in full compliance with said act, so as to entitle himself and wife to a patent, subject to survey by the United States surveyor. In 1853 he died, leaving a widow and children. All the requirements of said act had been complied with, and the widow and children of Amos Short held, prior to and in the year 1855, in undivided shares, all disposable interest in and to said tract of land, and were entitled to a patent therefor from the United States. In 1855 they agreed to make, and did make, a parol division or partition of this whole tract into halves; the east half was assigned to the widow, and the west half to the children. This partition was, of course, subject to the survey and division made by the surveyor-general, and to the division line which he might determine. The children, assuming that the west half belonged to themselves, proceeded in 1856 to make a partition of it and to determine their own shares in severalty. To this end, those who were of age applied personally, and those who were minors applied by guardian, to the proper probate court for a partition. Proceedings were thereupon had, by which the probate court, in form at least, decreed a partition of the west half among all the children. To this partition all of the children actually and willingly consented by each, either personally or by guardian, taking possession and control of his or her portion in severalty, and by mutually paying and accepting owelty sufficient to fully equalize all the allotments. In 1874 the United States surveyorgeneral divided the land between the widow and the heirs, and among the heirs themselves, in exactly the same manner in which they themselves had partitioned it in 1856. Under these partitions, G. H. Short, one of the minor children, became entitled to and possessed of a share of said west half, known as lot 7, which is the land in controversy. held and used that lot as his own until 1865. In that year his guardian, acting under direction of the court of probate, sold said lot to the appellee, Schofield, for a fair price, which, under direction of the court, was applied in paying a mortgage upon the premises and other debts proved and allowed against said minor's estate. G. H. Short became of age in 1866. In 1878, twelve years after attaining his majority, during which interval he had not, by word or act, objected to any of the foregoing proceedings, he gave to the appellant's grantor a quitclaim deed of all his right, title and interest in the said donation claim; and about the same time the other heirs gave to the appellant's grantor similar deeds of their respective interests. At the execution of these latter conveyances, periods varying from eight to twenty-one years had elapsed since each one of the heirs had become of age, during which times none of them had made any objection to the various proceedings aboved described. Meanwhile the appellees have put upon the premises permanent improvements of great value. Held, that even if the proceedings in the probate court for the partition and for the sale were irregular, the said heirs were estopped by their long acquiescence, after attaining their majority, from objecting to the regularity and validity of the partitions which had been made, or of the sale of the land by order of the probate court; and that their quitclaims to appellant's grantor conveyed no right, title or interest in the premises. He APPEAL from a judgment of the district court. The opinion states the facts. George H. Williams and Leander Holmes, for the appellant. GREEN, C. J. The first step toward deciding this cause is to determine clearly the nature of what takes place between the United States and its donee, when proceedings are had under the Oregon donation act to establish title in the latter. By the act there is granted" to every man of a certain description-or, if he has a wife, then to him and her, in equal parts, as shall be set off to them severally by the surveyor-general-a tract of land not to exceed a certain area, on condition that the same shall be selected in a certain way, and in consideration that it shall be resided upon and cultivated a certain length of time. This grant is subject, however, to the qualification that if the husband and wife have complied with the provisions of the act, so as to entitle them to the grant, and either of them before patent has issued shall have died intestate as to his or her share, the survivor and children or heirs of the deceased shall be entitled to the share or interest of the decedent, in equal proportions. Throughout the transaction the United States holds the position of seller and the donee that of purchaser. As soon as the necessary selection has been made and the prescribed residence and cultivation completed, the transaction is closed as far as bargain and sale are concerned. Nothing remains but to assure the vendor, or the vendor's agents, the officers of the land office, that as matter of fact the grant has become effective, by meeting a fit grantee who has rendered the proposed consideration, so that they may furnish the grantee with good and sufficient evidence of his title. Final proof, so called, is no part of the consideration which the grantee gives, but is merely evidentiary matter, provided for the purpose of satisfying the land office that the right of the grantee is perfect and entitles him to a patent. The act, and not the patent, is the instrument which makes the transfer of title. Its language is unmistakable, "there shall be and hereby is granted." One conveys, the other evidences title. The patent is but a formal and solemn piece of evidence, that all things essential to be done under the donation act before the passage of title have been done, and that therefore under the act title has actually passed out from the United States into the donee. Act and patent together fulfill all the functions of an ordinary deed of conveyance. The two together both convey and evidence title. The patent merely evidences and does no more; but the act evidences to a certain extent only, and then, over and beyond that, does alone and perfectly convey. When patent issues, it relates back to and combines with the act, as of the date when a fit grantee, rendering full consideration, appeared, and so as to form with the act a perfect muniment of title. Title under the donation act, therefore, is always complete before patent issues, and the patent issues by virtue of title completed, and not otherwise. In the case at bar, the widow and heirs, if they have acquired any title at all, have got it under the donation act. Their patent so recites, and neither they nor any grantee of theirs can, while claiming under that patent, deny it. They are estopped from saying, to the prejudice of any grantee of theirs, but that the husband and ancestor, Amos Short, deceased, duly resided upon and cultivated for the prescribed period the donation land claim known as his, or that by virtue of a full compliance with the essential requirements of the donation act his widow and children were, at the date of his death in January, 1853, entitled under the act to that land claim. Such being their situation, the great question of this case is: Has that title as to the parcel of land here in dispute passed, by reason of their acts, from them to the appellees? All provisions of the donation act necessary and precedent to the passage of title had been complied with prior to 1855, and the widow and children then held among them undivided, all disposable interest in the land. In that year or the next, as appears from the evidence, they agreed to, and did as far as they could, divide the claim into halves, an east half and a west half, assigning to the widow the east, and to the children the west. This, of course, was subject to whatever decision the surveyorgeneral might make in determining where the division line should be drawn. Assuming that the surveyor-general would affirm or fall in with their decision, and that the west half would by him be set off to them, the children afterward, in 1856, undertook to procure a further division among themselves of that half. To effect this, those of them who were of age applied personally and those not of age by guardian to the probate court for a partition. Pursuant to, or connected with, that application a partition-at least in form-was made or sought to be made by the court. Considered as a judicial proceeding, it was doubtless void, except in so far as it engaged the court in supervising and sanctioning the acts of the participating guardians. But the formal partition all the heirs willingly made actual and substantial by each personally or by guardian spontaneously taking possession and dominion in severalty of his or her portion, and by mutually paying and accepting owelty sufficient fully to equalize all the allotments. Was it in fact, then, valid or void? It is agreed by appellant that it was void, for three reasons: first, because the guardians acted without authority, and have never had their action affirmed by their wards since the latter became of age; second, because it was by parol and not by deed; third, "because that half of the donation claim which the heirs undertook to subdivide had not yet been assigned to them by the surveyor-general. As to the first objection, the assumption that the guardians acted without authority is not borne out by the record. They were in presence of that court which had peculiar and general jurisdiction over them; they were parties to the petition for partition among the children; they proceeded in the partition among the children on the basis of the previous partition between the widow and children, they acted throughout under the eye of their supervising court, and their action, after all was done, and with everything in full view and |