
    MATTER OF DESTY.
    
      N. Y. Superior Court; Special Term,
    January, 1880.
    Naturalization.—Marin» up Eecord nunc pro tunc.—Presumptions.
    The court cannot make up a record of naturalization proceedings and issue a certificate nunc pro tunc, when no record has been made of the steps taken antecedent to the issuing of the certificate.
    It cannot be supposed that things have been done in respect to the naturalization of persons, which do not appear of record.
    
    Application for certificate of naturalization.
    This was an application by Robert Desty to have the record of his naturalization entered as of the date of November 28, 1849, and a certificate of naturalization to be issued to him nune pro nunc.
    
    He stated in his petition that he was born in Quebec, Canada, February 16, 1827, that his father, John d’Estimanville.de Beau Mauchel, died there in 1830, and that about 1837 he left therewith his mother for the city of New York, the family intending to reside in the future in the United States ; that from that time to 1849 New York city was his legal residence ; that he served in the United States army in the Mexican war; that upon his return from the war he took out articles as a student of law, which were filed in the superior court; that in November, 1849, just before starting for California, he procured his naturalization papers, and also induced several Canadian friends, among the rest George B. Bolland, Charles Selby and Octave Bochon, to take out their first paper's.
    The particulars were stated as follows :
    “We were obliged to remain in New York or its vicinity until the steamer sailed on December 1, 1849. On N ovember 28, we went with our witnesses to the superior court of the city of New York, then located in the City Hall, in the Park. I received my naturalization papers first, having applied for them in open court, and produced witnesses to prove my residence in the United States from an early age, say .nine to twelve years of age. The usual course was pursued. I renounced allegiance to foreign powers and all titles of nobility, and was sworn to support the constitution of the United States. I thereupon received a paper or document, which I was informed by the clerk was my certificate of naturalization. It was under the signature of the clerk and the seal of the court. Immediately upon my receiving this paper, I urged my friends to take out their first papers, as a preliminary step to becoming citizens. This they did.”
    He then stated that he sailed for California on December 1, 1849, and arrived in San Francisco February 25, 1850, and had resided in California ever since. That in May or June, 1850, his naturalization papers were destroyed by fire. He also' stated that on going to California he had changed - his name to Bobert Desty. That he had continuously exercised the rights of citizenship since 1849, was a member of the bar of the State of California, had held public office, and was then senator-elect for the city of San Francisco, but was prevented from taking his seat because of objection made as to his citizenship.
    
      He also stated that he had caused diligent search to be made in the office of the clerk of the court for papers in any way relating to his naturalization during the months of November and December, 1849, but nothing had been discovered except a declaration of renunciation of allegiance (a copy of which was annexed to the petition), and which he remembered having made at the time of his naturalization, which was necessary under the law, before naturalization.
    He therefore asked the court to direct the clerk to file upon its record the petition, the documents accompanying the same, and the proof that might be taken before the court; and to cause to be issued to him a special certificate that he was naturalized on November 28, 1849.
    
      Turner, Lee & McClure, for the petitioner.
    
      
       See also Matter of Christern, 43 Super. Ct. (J. & S.) 523.
    
   Sedgwtck, J.

There are two fatal objections to granting the relief asked. The first is that this court has no power to make up a record nunc pro tunc, when it appears, as it does in this case, that whatever certificate was given to the petitioner in 1849, no record at all, in fact, was made of the antecedent steps taken. The act of Congress specifically requires, as a fact, that the application, &c., shall be recorded, to justify the order of naturalization.

The second is, that what does appear of record shows that the petitioner did not make the application to be admitted as a person who had resided in this country between the ages of eighteen and twenty-one. It would be an error to suppose that the records of the term in question are fragmentary or admit the supposition, that things may have been done in respect of the naturalization of persons, which do not appear of record. The papers of record disclose two forms of application at that time of the same kind that are still used. There was one form in which the applicant stated or declared his intention to become a citizen if he did not apply for immediate naturalization. There was another form in which was stated that he had had through a former period the intention to become a citizen. This was used when the applicant, having resided here for the specified period before attaining majority, applied for immediate naturalization. The record shows that the petitioner made his declaration of intention in the first mentioned form. The inference is irresistible that there was no application for immediate naturalization. The record shows declaration of intention to become a citizen, made by the petitioner and George R. Holland, on November 22, 1849; by Octave Rochon on November 28, 1849; by Charles Selby on December 1, 1849.

It is-just to petitioner to say that nothing has appeared in the course of this proceeding that tended to show that he did not believe that he had been naturalized or that his position is due to anything but a mistake on his part. Indeed, the facts proven show clearly that if he had made the application in form, and supported it by witnesses, who were in existence and probably present then, he could have been naturalized in 1849.

The application must be denied.  