the certificate the officer who took the deposition objected to is sufficient. He states that he did not give the defendant Runnels, nor his counsel, notice, as neither lived within one hundred miles of the place where the deposition was taken. This may be true, it is alleged, and yet one or both of them might have been in New Orleans, or near to it, at the date of the certificate.

The law requires that a" notice shall be made out and served on the adverse party or his at torney, as either may be nearest, if either is within one hundred miles of the place of such caption," &c. The officer taking the deposition is presumed to know the residence of the party entitled to notice, as the person at whose instance the deposition is taken is bound to communicate that fact to him. But beyond this, he cannot be presumed to know or required to certify. If, in the words of the act, he certifies "that the adverse party or his attorney is not within one hundred miles," he is presumed so to state from the known fact that the residence of neither is within the distance specified. If the party or his counsel live within the hundred miles, a notice left at his residence would be good.

Where the party entitled to a notice lives more than one hundred miles from the place where the deposition is taken, and the officer so certifies, it would be sufficient, although it might be proved that such party was within the distance specified at the time, if the fact were unknown to the officer and the person in whose behalf the deposition was taken. The certificate may be controverted by parol proof, especially in regard to the facts stated, of which

the magistrate is not supposed to have official knowledge. And if it were made to appear that the person entitled to notice did not live one hundred miles from the place of the caption of the deposition, or if he were known to the magistrate or the party to be temporarily within that distance, where a notice might be served on him, though his residence might be more than one hundred miles distant, without a notice, the proceeding would be irregular and the deposition inadmissible.

10*] * Upon the whole, we think the certificate under consideration was sufficient, and that the deposition, on the ground stated, ought not to be

overruled.

ORDER.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and on the point and question on which the judges of the said Circuit Court were opposed in opinion, and which was certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel; on consideration whereof, it is the opinion of this court that the certificate under consideration was

sufficient, and that the deposition, on the ground stated, ought not to be overruled. Whereupon, it is now here ordered and adjudged, that it be so certified to the said Circuit

Court.

THE UNITED STATES, Appellants,

V.

JOSEPH LAWTON, Executor of CHARLES LAWTON, MARTHA POLLARD, HANNAH MARIA KERSHAW, Wife of JAMES KERSHAW, ET AL.

Spanish grant void for uncertainty.

A Spanish grant of land in Florida, for six miles square, "at the place called Dunn's Lake, upon the river St. John's," is too vague to be confirmed, even with the additional knowledge that the object of the grantee was to establish machinery to be propelled by water power.

The river St. John's meanders so much that it is near Dunn's Lake for thirty miles. The survey distance with as much propriety as at any other might therefore commence at any point of this point.

This concession cannot be distinguished from various others which have been brought before this court. The land granted was not severed from the king's domain. It remained a floating grant, not recognized by the government of Spain before the cession, nor by this government since as conferring an individual title to any specific

parcel of land.

Nor is the grant in this case aided by two surveys, one purporting to have been made in December, 1817, and the other in the spring of 1818. The first must have been fictitious, not actually made upon the ground, but merely upon paper; and the second was too imperfect to be effectual. alone could act upon these incipient titles. By Previous to the Act of May 26, 1824, Congress that act power was given to the court to pass a decree for the land, provided its locality, extent, and boundaries could be found. But, in the present case, this cannot be done.

THIS was an appeal from the Superior Court Tf was Florida, under the following cir cumstances:

On the 10th of November, 1817, James Darley presented the following petition to Governor Coppinger:

"To his Excellency the Governor:

ain, with the respect due to your excellency, "Don James Darley, a native of Great Britsays, that with the view of settling himself in His Catholic Majesty, knowing the very great *this province under the protection of [*11 advantages that would result to the commerce for sawing is erected, for sawing for the conof it from the article of lumber, if machinery sumption of the province, as well as for exportation; and wishing to dedicate his attention and funds to this object, whenever he may be in possession of the necessary right, he asks and supplicates your excellency will be pleased to grant to him from this time, in absolute property, six miles square of land, at the place called Dunn's Lake, upon the river St. John's, for the purpose aforesaid of establishing said machinery; which favor he hopes to merit from the justice of your excellency. St. Augustine, Florida, 10th of November, 1817."

To which the following response was given:

Decree.

"ST. AUGUSTINE, 10th of November, 1817. utility which ought to result to the improve"Taking into consideration the benefit and

NOTE. As to errors in surveys and in descriptions

in patents for land, see note to Watts v. Lindsay, 7 Wheat., 158.

On the 21st of December, 1817. George Clarke, the Surveyor General, gave the following certificate of survey, accompanied by a plat:

"I, Don George Clarke, captain of the Northern District of East Florida, and by the government thereof appointed Surveyor-General of said province, do certify that I have surveyed and delineated for Santiago Darley a square of six miles of land, equal to twentythree thousand and four acres, on the west part of Dunn's Lake, contiguous to the waters thereof, in its upper part, which lands were granted to him by the government on the 10th of November of the present year. Said tract is conformable to the following plat, and to the copy thereof, which I keep. Northern District, 21st December, 1817.

On the 22d of May, 1819, the grantee filed his petition to the Superior Court of Florida, praying confirmation.

On the 12th of September, 1829, the District Attorney of the United States, Thomas Douglas, answered the above petition, denied generally the matters and things stated in it, of which he required proof, averred that the grant, if made, was in violation of the laws of Spain, and that the governor had no power to make it; and that if made at all, it was made 12*] after the 24th of January, 1818, *and antedated; that grants for speculation were contrary to the policy of Spain, and void; that the grant, if made, was upon the condition that Darley would build a saw-mill, which he had not done; that the grant conferred no right to the soil, but only a right to cut pine trees for the use of the mill, and averred that Darley was not a subject of the King of Spain at the date of the supposed grant, which circumstance, of itself, rendered the grant null and void.

On the 26th of May, 1830, Congress passed an act, the fourth section of which enacted as follows:

That all the remaining claims which have been presented according to law, and not finally acted upon, shall be adjudicated and finally settled, upon the same conditions, restrictions, and limitations, in every respect, as are prescribed by the Act of Congress approved 23d May, 1828."

On the 4th of January, 1834, the will of Darley was admitted to probate (he having died at some prior time which the record does not state), and letters testamentary were granted to Charles Lawton as executor.

On the 23d of July, 1834, the claimant's death was suggested, and the cause ordered to proceed in the name of Charles Lawton, executor.

On the 29th of July, 1834. Charles Lawton filed a bill of revivor on behalf of himself and the unknown heirs and devisees of the deceased. On the 26th of August, 1834, the attorney of

On the 16th of June, 1841, a bill of revivor was filed on behalf of Joseph Lawton, executor of Martha Pollard, the widow of Jonathan Pollard, late of England, deceased; of James Kershaw and Hannah Maria Pollard, his wife; of Robert Mutrie and Sarah Pollard, his wife; of William Pollard and James Pollard, all of England, children of Martha Pollard, and heirs and legatees of James Darley, deceased.

On the 10th of July, 1841, the District Attorney of the United States filed his answer in the nature of a general replication, and on the 17th of July the cause came up for hearing.

On the 13th of September, 1841, the court pronounced a decree, from which the following is an extract:

"Without recapitulating the other proofs in the cause, it is sufficient for the present to say, that the claimants have made out a case, which entitles them to a confirmation of the title of the land granted, provided the identity of the land specified in the grant is such as to warrant a decree of confirmation; or, in other words, if *the description of the land, as contained [*13 in the grant, is such that the land intended can be identified, located, and laid down by actual survey, according to the calls and manifest intention of the grant.

"

The claimants have put in evidence a survey of a tract of land, made by George J. F. Clarke (formerly the Spanish Surveyor General of East Florida), bearing date the twenty-first day of December, 1817, and which, with the plat accompanying it, purports to be a survey and plat of the land in question. But there are objections to this survey of such a nature as to make it improper that an absolute decree should be made for the land therein described.

"First, it does not follow the calls of the grant, even if they can be followed at all; the grant is for the place called Dunn's Lake, 'on the river St. John's.' There is as yet no proof that there is such a place on the river St. John's; but taking it for granted that there is such a place, which may be found, this survey does not appear to be at that place; it is not on the river St. John's' at all.

"The location, it is true, appears to be on the west side of Dunn's Lake, and contiguous to the waters thereof in its upper part. In the absence of any proof as to the geography of the country, if it should be said that the court should take notice of the maps of the surveyed part of the territory, as published from the land office, it will be remarked that the maps of the country show that a lake, called Dunn's Lake, does connect itself with the St. John's; but it will also appear that a square of six miles, bounded on the east by the upper end of the lake, will not extend to the river St. John's; and if it was the intention of the grant that the lands should lie upon the river St. John's,' such a location as is set forth in the plat and survey must of course be rejected.

Whether the point of junction between the lake and the river is the place' alluded to in the grant, it is not necessary now to determine (nor in fact can that point be determined without further proof); but if it is there, clearly the

survey offered is not a survey or plat of the land granted.

Second. The survey and plat are materially defective in other particulars. There is no well defined corner, or permanent monument, mark, or boundary, which is known and established, or which can be found as a starting point. The plat shows that the first corner is a stake in the swamp, near the margin of the lake, but whereabouts in the swamp, or how far from the head or the foot of the lake, does not appear; and all the other corners are represented to be stakes, but without marks, and their location entirely undefined; and the survey does not purport that the lines were ever run or marked: and even if it was conceded that stakes were set at the four corners of a tract six miles square, in that part of the country, in 1817, it could hardly be supposed that at this time 14*]*they would furnish any aid to the person who should attempt to find the tract; but the court cannot disregard the suggestion which has been repeatedly made in these land cases, with reference to Clarke's surveys, viz. that they were not made in fact upon the land, but merely delineated on paper, particularly where that suggestion is strengthened by the internal evidence afforded by the survey itself. This plat and survey bill might easily have been inade by Mr. Clarke without his ever seeing the land, and in the absence of any proof to show that any one corner, line, or mark, or boundary of this tract is now extant, or can be found, it would be very improper to confirm this survey.

"It must not be overlooked in the decision of these land cases, that although the equity and justice of the claim, or the validity of the grant alleged, is of primary importance, and the first thing to be ascertained, yet the exact location and boundaries of the tract in question are equally important, not only to the United States, but to the claimant; and it was one of the principal objects that the government had in view, in confiding the adjustment of these claims to this court, by the Act of 1828 and 1830, that the extent, location, and boundaries of such grants as were found to be valid might be clearly ascertained, and fully and finally adjusted between the claimants and the government, so that the grants found to be valid might, with precision and accuracy, be severed from the remainder of the public domain, and that the proper officers of the government might know what lands belonged to the United States, and what might and could safely be sold by them.

This was all important to the correct operations of the land office, and of deep concern to the claimants, and by the act of Congress the decree of this court is made final and conclusive upon the parties, unless appealed from. To make a decree, therefore, which merely set tles the right of the claimant to a certain quantity of land in a certain neighborhood, or section of the country, without clearly defining the locality, extent, and boundaries of such land, by proper and known or permanent landmarks and monuments, would seem to be a very incomplete fulfillment of the provisions of the statute, and to fall far short of the objects of the law. The surveys of these grants should be accurate, and defined by permanent

corners, and the intersection of the lines of the tract with the lines of the government surveys should be clearly and accurately shown; or where this is not entirely practicable, some one or more of the corners of the tract or grant should be clearly defined by a permanent landmark or monument, and its course and distance from some corner of the public surveys accurately given, so that the lines of the tract may be seen therefrom without any difficulty. "In this case, it may be that the survey was actually made, and that further proofs may show that the lines and corners are now to be found, and that it is clearly within [*15 the calls of the grant; but if, on the other hand, it should appear that no survey was made, or that no corners or boundaries can be found, or, being found, that they are not within the calls of the grant, then it is a proper case for a survey before final decree, and one should be made; provided, upon proofs to be made respecting the region of country in which the grant is claimed, the place' designated in the grant can be found and identified; but if, on the contrary, it should appear that the place mentioned in the grant cannot be found, and that the description is too indefinite for a survey to be made, that the description lacks identity, or ascertainable locality, then of course the grant must be declared void for want of identity, and the claimants take nothing by their concession. (Forbes's case, 15 Peters, 184, 185; Arredondo's case, 6 Peters, 691; Bucyk's case, 15 Peters, 223.)

"With a view, therefore, of enabling the claimants to produce further proofs on these points, and to identify and locate the land claimed by actual survey, or otherwise, the decree must be suspended or postponed, and the cause continued.

"J. H. BRONSON, Judge."

On the 13th of November, 1841, the evidence of Mauricio Sanchez, Joseph S. Sanchez, and John M. Fontane was filed, in addition to that of Antonio Alvarez, all of which is as follows:

Testimony of Antonio Alvarez, a witness produced, sworn, and examined on the part of the claimants.

Witness says. I am keeper of the public archives of East Florida; a certificate, with the name of Thomas de Aguilar signed to it, being shown to witness, he says, this document was transferred to my office by the land commissioners. It is in the handwriting of Thomas de Aguilar, and is signed by him. The certified copy here produced and filed in this cause (by me certified) is a true copy of this paper. This certificate of Aguilar came into my office in 1829, or early in 1830. This claim of Darley was filed before the board of land commissioners, 29th November, 1823. plat and survey, it appears, were filed with the commissioners on that day. I was in the secretary's office here in 1817. The paper which we used was from Havana; we usually got our paper there; never got American paper that I remember. The inhabitants here were in the habit of using American, or English, or Spanish paper. Paper imported from the United States was common in those days."

The

Being cross-examined, witness says the paper on which the Aguilar certificate is written is Spanish paper. The survey is on American

paper. Clarke did not do his business in the secretary's office.

Testimony of Mauricio Sanchez, Joseph S. 16*] Sanchez, and John *M. Fontane, witnesses produced, sworn, and examined on the part of the claimants.

Mauricio Sanchez, sworn, says, "I know the lake called Dunn's Lake; have known it about fourteen years. It is on the east side of the St. John's River, and about fifty miles southwest of St. Augustine. I know of no other lake of that name; it empties into the St. John's. The lake is about fifteen miles long, and about three or four miles wide. I lived on the lake with my uncle, Ramon Sanchez, above six or eight years. This is Dunn's Lake on the St. John's.

Cross-examined by United States Attorney: Witness says: From the river St. John's you go about ten miles through a deep creek to the lake. It is about five miles to Lake George. The St. John's River makes a bend west of this lake, and leaves a deep strip between it and the river St. John's. This strip of land is sometimes called Cowsneck, and sometimes Dunn's Lake neck. There is a swamp on the west side of the lake, continuing eight or nine miles up from the mouth of the outlet. The spots of hard land, and some swamps and sawgrass," &c.

BY THE COURT:

"I know of no place on the St. John's River called Dunn's Lake, except this. The mouth of the outlet in the St. John's is about seven miles above Pilatka. From Hambly's store on the St. John's it is about seven or eight miles across to the lake; above there it is perhaps four or five. Dunn's creek is about twenty or thirty feet wide, and in going up into the lake, you go in a southeasterly direction, about ten miles by the meanders of the creek, and about seven miles in a straight line. The lake is about fifteen miles long, and about three miles wide on an average, and lies nearly north and south. A swamp extends up the lake about half way on the west side. Then there is some swamp, some hammock, and some hard land.

The average width of the strip of land lying between the lake and river St. John's is about five miles. In some places more. The 17*1 *widest part of the strip is at the north end of the lake. From the middle of the west side of the lake, I should think it would be about five and a half miles to the St. John's, and above that the average width is about

five miles between the Lake and river St. John's.

"By Dunn's Lake on the river St. John's, I understand, a Dunn's Lake on the St. John's. But I know nothing about Dunn's Lake."

John M. Fontane, being duly sworn, says: "I have seen a survey made for James Darley, by Geo. J. F. Clarke. I received fifty dollars from Darley for Clarke for making this survey, by an order from Clarke, about 1820. I understood it was for making this survey. "There is a Dunn's Lake which empties into the St. John's. It is the only one that I know of. I have never been there."

On the same day when this evidence was filed, viz., the 13th of November, 1841, the court passed an order to have the land surveyed. Owing to various impediments, this survey was not made until the 1st of July. 1843, nor returned to the court until the 1st of December, 1843. It was made by James M. Gould, the county surveyor of St. John's County, and upon its presentation was objected to by the counsel for the United States, because it did not conform to the grant, or to the calls of the grant. It was, however, allowed to be received in evidence, subject to the objection of the counsel for the United States, and without prejudice.

On the same day when the survey was returned, viz., the 1st of December, 1843, the counsel for the claimants offered the deposition of James Pellicier, taken under commis sion, which was read in evidence. The testimony and answers of the witness in this deposition were objected to by the counsel for the United States as being irrelevant and improper, and the whole evidence objected to as being incompetent. The counsel for claimants said that he offered the deposition to show that there is such a tract of land, and to identify and locate it. The deposition was received, as tending to show that there is such a tract of land, &c., but subject to the objection of the counsel of the United States, as to its relevancy and effect.

The deposition was as follows:

Interrogatories to be propounded to James Pellicier, a witness in the above entitled cause. and to be taken before George R. Fairbanks, Esq., clerk, and to be used in evidence on the trial thereof.

First. Were you or not acquainted with James Darley in his lifetime? Where did he reside, previous to the year 1817, and was he or not a Spanish subject?

To the first interrogatory witness answers: **I was acquainted with James Dar- [*18 ley in his lifetime. He resided in the city of St. Augustine previous to the year 1817; he was a merchant at that time; I believe that he was a Spanish subject, and have no doubt of it."

Second. Have you or not any knowledge of a concession of land made by the Spanish government to the said James Darley, on Dunn's Lake?

To the second interrogatory he replies:

"I understood from the said James Darley, at that time, that he had received a grant of land from the Spanish government, situated on Dunn's Lake. I think I so understood from him about the early part of 1817, or the early