If we fully comprehend the argument of appellants, they claim that the decision of this case must turn upon the question whether the “Eancho Milpitas is excepted from the confirmation to the City of San José,” for it seems to be conceded that if the rancho is excepted from the lands confirmed to the city, then it devolves upon the plaintiffs to show, not only that the land in controversy is within the general boundaries described in the decree of confirmation, but also that it is not within any of the lands excepted. The District Court was of opinion that the Eancho Los Milpitas is excepted.

*345Appellants seem to rest their view upon the word “ deductions,” used in the decree of confirmation. The decree' confirms the claim of the city, “according to the ancient boundaries of said pueblo, as ascertained by the orders and decrees of the former Government of California,” etc. The boundaries “shall be ascertained and surveyed as follows: beginning at a point,” etc., giving a particular description by metes and bounds, “subject to the following deductionsr namely: the Ranchos Los Milpitas,” etc. It is said that the whole, to the extent of the boundaries described, is confirmed to the city, subject to the deductions specified, which deductions are said not to be exceptions. But if there "can be any doubt as to what is meant by the term “ deductions,” whén considered by itself, there are other explanatory words rendering the meaning clear, which appellants omit to notice in their argument. After particularly specifying the several “deductions,” the decree proceeds to say: “All of which excepted parcels of land are included, in whole or in part, within the boundaries above mentioned, but are excluded from the confirmation of the Mayor and Common Council of the City of San José.” If this does not show an exception in the strictest sense of the term, it would be difficult to express an exception. The decree, in so many words, speaks of “said excepted parcels of land,” and says that the Rancho Los Milpitas, although included by the boundaries used for the purposes of a description, is still excluded from the confirmation. That is to say, Rancho Los Milpitas—whatever lands that may embrace—is not confirmed to the City of San José, but is excepted and excluded from the lands within the general boundary, and that only such lands are confirmed to the city as remain after the exceptions are taken out. Thus the decree itself defines the term “deductions,” as therein used.

It is plain that the clause in the stipulation introduced in evidence—“in accordance with said decree”—was not intended to be therein used in the sense now claimed for it *346by appellants. The stipulation was only intended—and this is the plain construction—to show the course of the proceeding in the case, and the stage and condition of the proceeding under the decree as it existed at that time. That is to say, that a survey had been made under the decree and order confirmed by the District Court, and was then pending on appeal and undetermined in the Supreme Court of the United States.

We think the District Court correct in the view taken, and that the action was prematurely brought. »

Judgment and order denying a new trial affirmed, as of the April Term, 1868, and remittitur directed to issue forthwith.