Buffalo Plank Read Co. agt. Commissioners of Highways, &c. section makes it their duty to make a separate list of such persons, and such land or property so assessed, and deliver it to one of the directors of the plank road. This duty is not imposed, unless, in the exercise of the power conferred in the first section, they shall have assessed such person, &c., and apportioned the highway labor upon the plank road. It seems to me, that it would be unwise legislation to deprive the commissioners of highways of all control over the highway labor of those persons living or owning property on the lines of plank roads owned by private corporations. The labor necessary for the maintenance of public highways in the neighborhood might be withdrawn to the great prejudice of the public, and the public highways might become impaired. On the other hand, it may be very proper, that a portion of the highway labor of those living or owning property upon plank roads, should be applied upon the plank road; and there may be cases when all this labor may very properly be expended upon the plank road, without injury to the public, or public highways in the town. The power to apportion the labor, after the tax payer has made his application, is therefore very properly confided to the highway commissioners, who have charge of all the highways in their town. They should exercise this power discreetly. But, as the power is discretionary, the courts cannot control it. In the present case, it appears that the commissioners have assessed more than half of the persons making application, and have apportioned their labor to be done upon the plank road, and have made out the list pursuant to the statute. The commissioners have regarded the power as discretionary, and in this I think they have given to the statute its true construction. This view is strengthened by referring to our highway system, by which the care and superintendence of highways and bridges are given to the commissioners of highways. (1 R. S. 501, § 1.) It is made their duty to keep them in repair; to divide the town into road districts-annually, if they think it necessary; and to assign to each of the districts such of the inhabitants liable to work on highways as they shall think proper-having regard to the proximity of residence, as much as may be. Tarrant, Admr., &c., agt. Quackenbos and others. It here appears that the commissioners have power over all the highway labor of the town, and may assign it in such portions as they please to the different road districts. They are, however, admonished to regard the proximity of residence of those who are to perform the labor as much as may be. The power to make the districts, and assign the inhabitants to the districts, must be exercised by them; but, in exercising this power, they act upon their own judgment and discretion. In my opinion, the legislature did not intend, by the act of 1853, to withdraw this discretionary power of the commissioners over the highway labor of their town, and compel them, in any contingency, to apportion portions of the labor to plank roads passing through the town. The motion for mandamus must be denied, with $10 costs. SUPREME COURT. JOHN A. TARRANT, Admr., &c., agt. NICHOLAS QUACKENBOS and others. An action brought by a plaintiff against a defendant, the holder of a mortgage, for the purpose of declaring void and cancelling the mortgage, does not stay the defendant from instituting a suit against that plaintiff and others, to foreclose the mortgage. New-York Special Term, Aug., 1853. MOTION made by the defendants for an injunction, restraining the plaintiff from the further prosecution of this action, until the final determination of the issue in a cause now pending in the superior court of the city of New York, in which the above-named defendant, Nicholas Quackenbos, is plaintiff, and the above-named plaintiff is defendant. A. J. WILLARD, for motion. Tarrant, Admr., &c., agt. Quackenbos and others. MORRIS, Justice. The papers used upon the argument of this motion, show the following facts : On the 11th of November, 1852, Nicholas Quackenbos, one of the defendants in this cause, instituted a suit in the superior court of the city of New-York, against John A. Tarrant, the plaintiff in this suit, administrator, &c., of James Tarrant, deceased, to declare void and cancel a certain mortgage, given by Henry Feltus Quackenbos, one of the above defendants, to the above-named James Tarrant, in his lifetime, upon certain houses and lots situated in the city of New-York, and particularly described in the mortgage, and in the complaint. On the 20th of December, 1852, issue was joined in the cause, in the superior court, by the answer of the defendant in that suit the plaintiff in this. On the 23d of December, 1852, the above-named John A. Tarrant commenced this suit, in the supreme court, as administrator, &c., of James Tarrant, deceased, against all the defendants, to foreclose the said mortgage, given by the said Henry Feltus Quackenbos, mentioned in the suit in the superior court. On the 7th of February, 1853, issue was joined in this suit, by the joint answer of all the defendants. In this motion, the defendants claim, that a decision of the suit of Nicholas Quackenbos agt. John A. Tarrant, in the superior court, will settle the question involved in this suit, and that, as the issue in the superior court is the oldest, and to prevent unnecessary expense, this suit should be stayed until that is decided. A decision of the cause in the superior court, in favor of the validity of the mortgage, does not save the necessity for the continuance and determination of this suit; but a decision of this cause would settle all the issues between the parties: as well the validity of the mortgage, as the amount and lien of the indebtedness, and the collection of it. The plaintiff has a right to enforce the collection of his demand. The cause in the superior court, would not do that. Defendants' motion denied, with ten dollars costs to plaintiff, for opposing. Matter of application of John Clark. SUPREME COURT. IN THE MATTER OF THE APPLICATION OF JOHN CLARK TO BECOME A CITIZEN OF THE UNITED STATES. The court, and not the clerk of the court, is to admit an alien to citizenship. And, as the court, before admitting an alien, must be satisfied of certain facts, it follows, that the powers conferred upon the courts are judicial, and not ministerial or clerical; and, consequently, that these powers can not be delegated to the clerks, but must be exercised by the court; and require an examination into each case sufficient to satisfy the court of the following facts: 1. Five years continuous residence of the applicant within the United States, and one year of like residence within the State or Territory where the court to which the application is made is held. 2. That the applicant, during the five years, has conducted himself as a person of good moral character. 3. That the applicant is, in principle, attached to, and well disposed towards, the constitution of the United States. The act of 1802, and its amendments, are in all respects to be complied with by persons making application, (under the first section of said act,) who arrive in this country prior to attaining the age of eighteen, except, that they are not required to make and file a previous declaration of intention (two years) to become a citizen; but instead thereof, the oath of the party, and also proof that, for the three years next preceding, it has been his intention to become a citizen, are required. Dutchess Special Term, Dec., 1854. DEAN, Justice. The petitioner, a native of Scotland, applied to the clerk of this court for admission as a citizen. A number of other aliens made a like application. The clerk was proceeding to administer the forinal oath to the witness of the respective applicants, when the subject was brought to my notice; and, on inquiry, I learned that the practice had, for many years, been for the clerk to receive and pass upon all applications for naturalization, and grant certificates without consulting the court; and that the proof on which aliens were admitted to citizenship, did not ordinarily meet any one of the requirements of the statute. On this state of facts, I deemed it my duty to forbid the clerk from entertaining any applica Matter of application of John Clark. tions of this nature, directing that all should be made to the court. The application was then made to the court, and, on examination, I found that neither Clark, nor any one of the other candidates for citizenship, could furnish proof of continuous residence within the United States to exceed two or three years; and that each of the applicants was unprepared with any proof as to his conduct or character during even that brief period. As this decision must change the practice in naturalization cases in this court, and affect it in others, it is due to the importance of the subject, that the reasons on which it is found should be given. There are probably no laws of a public character so imperfectly understood and so badly administered as those for the naturalization of foreigners. Among the powers which were by the states delegated to congress, was the one "to establish a uniform rule of naturalization." This power was exercised the year after the formation of the government, by an act approved by WASHINGTON, March 26, 1790. Again, in 1795, and in 1798, in an act approved by president ADAMS. All these acts were repealed in 1802, during the presidency of JEFFERSON, when the act was passed, which, though it has often been modified in unimportant particulars, and in a few instances materially changed, is the one now in force, and under which the courts derive their jurisdiction to act in the premises. One reason why these laws are so imperfectly understood and so badly administered, is, that the statutes of the United States have little application to the affairs of the states, and the best lawyers of the several states are usually ignorant of their provisions. By the laws to establish a uniform rule of naturalization, any court in the state, possessing common law jurisdiction, a seal, and a clerk, can exercise the powers of admitting aliens to citizenship. The judges of these state courts, ordinarily familiar only with the laws of their own state, have their time occupied by attending to what they regard as their judicial duties, and permit, if they do not order, applications for naturalization to be made to the clerk, whose knowledge of the laws is derived from the printed blanks which he fills up and |