ment of this province by what the petitioner | the United States answered the bill of revivor, proposes, there are granted to him in absolute denying the right of Lawton to revive the suit, property, the six miles square of land which either for himself as executor, or on behalf of he solicits for said water saw-mill, and that it the unknown heirs and devisees. may be effected, let there be issued to him, from the secretary's office, a certified copy of this petition and decree, which will serve him as title in form. Coppinger."

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 made 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.

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 "This was all important to the correct oper- paper. This certificate of Aguilar came into ations of the land office, and of deep concern my office in 1829, or early in 1830. This claim to the claimants, and by the act of Congress of Darley was filed before the board of land the decree of this court is made final and con- commissioners, 29th November, 1823. The clusive upon the parties, unless appealed from. plat and survey, it appears, were filed with the To make a decree, therefore, which merely set-commissioners on that day. I was in the sectles 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

retary'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.”

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

Testimony of Mauricio Sanchez, Joseph S. "By Dunn's Lake on the river St. John's, I 16*] Sanchez, and John *M. Fontane, wit-understand, a Dunn's Lake on the St. John's. nesses produced, sworn, and examined on the But I know nothing about Dunn's Lake." part of the claimants. John M. Fontane, being duly sworn, says: Mauricio Sanchez, sworn, says, "I know the "I have seen a survey made for James lake called Dunn's Lake; have known it about Darley, by Geo. J. F. Clarke. I received fifty fourteen years. It is on the east side of the dollars from Darley for Clarke for making this St. John's River, and about fifty miles south-survey, by an order from Clarke, about 1820. west of St. Augustine. I know of no other I understood it was for making this survey. lake of that name; it empties into the St. "There is a Dunn's Lake which empties into John's. The lake is about fifteen miles long, the St. John's. It is the only one that I know and about three or four miles wide. I lived on of. I have never been there." 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," etc.

By the Court:

"If I had a grant on Dunn's Lake, I think I should have it lying on Dunn's Lake. The strip, or Cowsneck, is from six to ten miles wide, perhaps more. The outlet of the lake, by the meanders, is about ten miles; in a straight line, perhaps six miles. This outlet is a narrow creek, very deep, sometimes an hundred yards wide, sometimes narrower."

Joseph S. Sanchez, being duly sworn, says: "I have known Dunn's Lake for fifteen years. I have resided there, and know it well. It empties into the St. John's by a creek called Dunn's creek. The lake is east of the St. John's; it is about five or six miles from the St. John's. The widest part of the strip of land is near the beginning of the creek."

Cross-examined by counsel for the United

States:

"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 Palatka. 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 above 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

"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. 17*] *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

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 commission, 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, etc., 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

part of 1818, I am not sure which. The quan- | Mr. James M. Gould the same point at which tity I think was six miles square, granted for a we had commenced the survey, when I was mill seat. I think. It was a fact generally with Mr. McHardy. I saw and pointed out to known in the neighborhood where I lived, at Mr. Gould the same marks which I had made Mantanzas." when I was with Messrs. Darley and McHardy. I showed him a blazed tree, as the starting point.

Third. Do you or not know of the survey of a tract of land on Dunn's Lake, in favor of James Darley? If you do, say in what year that survey was made, who was the surveyor, and who the chain carriers. Were you, and who else were, present at this survey; and what was the number of acres to be surveyed, as near as you can recollect?

To the third interrogatory he answers: "In the year 1818, I think in the early part, between the middle of March and the middle of April in that year, I was employed by Mr. James Darley in assisting him to make a survey of a tract of land claimed by him on Dunn's Lake. Robert McHardy was the surveyor employed. Two black men, one called George Bulger, belonging to Mr. Bulger, of St. Augustine, and Peter Survel, a free black mulatto, were the chain carriers. I sometimes carried the compass, and sometimes the chain, as Mr. McHardy directed me. Mr. Gibson, of Charleston, and Mr. Alexander, of Charleston, were both present at said survey, and I understand are neither of them living. I cannot recollect the number of acres to be surveyed; I think it was six miles square."

Fourth. State where the surveyor commenced his survey, whether he made any marks, and what marks, and how far the survey extended, and what prevented the surveyor from extending his survey further. State all the particulars, and what marks, if any, you made on the line.

Seventh. Did you or not see other marks? State all the particulars.

To the seventh direct interrogatory witness says:

"I saw several blazes about the woods, but no other surveyor's marks. I did nothing more than to show them those old marks which I had made."

Eighth. State any other facts within your recollection.

To the eighth and last direct interrogatory witness says:

"That I do not know any other matter or thing pertinent to, or relating to, the subject matter of these interrogatories." James Pellicier.

Cross-interrogatories to be propounded on behalf of the United States to James Pellicier, a witness for the petitioner in the above entitled cause.

First. If you say that you know James Darley, please state whether he is now alive or dead, when and where he died, and his age at the time of his death, and your age now.

To the first cross-interrogatory witness replies:

"I know James Darley. He died in St. Augustine, in the summer of 1832. I do not know of his age at the time he died; he must have been between forty-five and fifty years of age when he died. I am nearly forty-seven years of age now.

*Second. Where was said James Dar- [*20 ley born; was he not born is Scotland, or in some other foreign country?

To the second cross-interrogatory witness answers:

"I have heard Mr. Darley say that he was born in England; have often heard him say that he was of English birth."

To the fourth interrogatory witness answers: "The surveyor commenced his survey on the edge of Dunn's Lake, at the south end of Cowen's old field, as it was called by the guide, Peter Survel; we run the line from thence, from three quarters of a mile to a mile and a half, west from the lake, and blazed the trees with one or two chops above the blazes; these marks were made by me. And then, on account of some misunderstanding between Third. If you say that said James Darley Mr. Darley and Mr. McHardy, the surveyor, was a Spanish subject, state how do you know 19*] *the survey was stopped. The misun- that fact; do you know it of your own knowlderstanding arose from Mr. McHardy's wish-edge? ing to see the order of survey, which Mr. To the third cross-interrogatory witness anDarley refused to exhibit to him, although he said he had it with him; we then broke up the survey, and went back to Mr. McHardy's, on the Tomoka."

Fifth. Say if it was the north or south line that McHardy surveyed.

To the fifth interrogatory witness replies: "The line surveyed by Mr. McHardy was intended for the north line of the tract."

Sixth. Were you or not with James M. Gould, Esq., at the time he made a recent survey of a tract of land as claimed by the heirs of Darley? State whether or not you pointed out the starting point of this survey; was it the same at which McHardy commenced; did you see any mark there, such as you judged to be the same that was made by McHardy, or not? To the sixth interrogatory witness replies: "I was with James M. Gould, Esq., at the time he made a recent survey of a tract of land as claimed by the heirs of Darley. I showed

swers:

"I have no other knowledge of James Darley being a Spanish subject than from having so understood from himself, and from the fact of his enjoying liberties and privileges which only Spanish subjects were permitted by the laws of the province to enjoy; he was reputed to be a Spanish subject."

Fourth. If you answer the second direct interrogatory in the affirmative, please state how you obtained such knowledge; was it not from report or hearsay, or the statements of said James Darley himself?

To the fourth cross-interrogatory witness says:

"My answer to the second direct interrogatory embraces all my knowledge on the subject, and is as full as I can make it."

Fifth. If you answer the third direct interrogatory in the affirmative, please state how you obtained your knowledge of said survey; was

it from report or hearsay, or the statements of the said James Darley himself? Did you assist in making a survey for said James Darley, at Dunn's Lake? If you did, state when and who was the surveyor, whether you know this of your own knowledge or from hearsay?

To the fifth cross-interrogatory witness says: "I obtained my knowledge of the survey spoken of, by having been present at, and assisting in making, such survey at Dunn's Lake as before spoken of. It was in the early part of 1818; it might have been in the early part of 1817; it strikes me that it was in the early part of 1818.. Mr. McHardy I know of my own knowledge was the surveyor."

Sixth. If you state who were the chain carriers, state whether you know this fact; do you know it of your own knowledge, or only from hearsay, or the statements of said James Darley himself?

To the sixth cross-interrogatory witness says:

"I know who were the chain carriers of my own knowledge, having been present at and assisting in the survey."

Seventh. If you state where the said surveyor commenced his survey, or testify as to other matters inquired of in the fourth direct interrogatory, please state how you know that fact; were you present at the making of the said survey?

To the seventh cross-interrogatory witness

answers:

"I was present at the making of said survey, 21*] and know where the *survey commenced from my own knowledge; the other portions of the fourth direct interrogatory are fully answered in the answer to that interrogatory." Eighth. How old were you at the time when you say the said survey was made? Was said James Darley present at the making thereof? Who was present? State the names (and age as near as you can recollect) of all the persons who were present.

To the eighth cross-interrogatory witness says:

made by McHardy; I judge them to be the same marks, from having made them myself, and from the fact of no other surveyor at that time using the same marks besides McHardy; these were the marks always made by McHardy in all his surveys."

Tenth. What were said marks? Describe them, and also all the other marks that you there saw, particularly; were there any letters amongst them? If there were, state what letters.

To the tenth cross-interrogatory witness answers:

"Said marks made on said survey were such as I have just described, a blaze with one or two chops above it; I think two chops; we made no other marks, except these blazes and chops. I saw no surveyor's marks other than these at that time or since; I never saw any letters at or about that place."

Eleventh. Is there any other matter or thing within your knowledge material or pertinent to the issue in this case; if there is, please to answer the same as fully and particularly as though you were now thereto specially interrogated.

To the eleventh cross-interrogatory witness answers:

"There is no other matter or thing within my knowledge material or pertinent to the issue in this cause. James Pellicier. *The claimants also offered the evi- [*22 dence of James M. Gould, who made the survey, which was as follows:

"The survey made by me, and now before me, is a correct survey, according to the certificate appended thereto. I took with me the maps from the land office.

"I found the marks of the government surveys, the sections and township lines; I took with me as a guide Mr. James Pellicier; I found trees marked, running nearly the same as the northerly line of the tract leading from the lake out in the woods; they were old marks; Mr. Pellicier pointed out to me a tree with old marks, and stated that within a hundred yards of that "I was about the age of twenty-one years tree was the line of the grant, that is, the beginwhen that survey was made; the said James ning corner; could not tell whether the marks Darley was present at the making of said sur- on that tree were surveyor's marks or not; Pelvey, and also a Mr. Gibson, and a Mr. Alex-licier represented it as a starting point, or as a ander of Charleston, and the two chain car-tree which he recalled to mind as indicating riers, and myself, and Mr. McHardy, made up about where the starting point was. He did our party. Messrs. Gibson and Alexander took not state to me that it began at a stake; he did no part in the survey; Mr. Gibson was about twenty-five years of age; Mr. Alexander must have been full fifty years of age, or upwards. George Bulger must have been about forty years of age, and Peter Survel, the other chain carrier, must have been about thirty years of age; Mr. McHardy was about forty years of age, and Mr. Darley, from thirty to thirty-five years of age at that time."

not positively point out any tree as the starting point; he said the tract was south of that tree. Î then sought for a line, and found the line spoken of; I did not find the line running from that tree, I found the line I supposed about a hundred yards south from that tree; the marked line of trees continued for half a mile from the lake, until we came to a pond; I found no old marks beyond and westwardly of the pond; my line varies a little from that line; it varies, however, several degrees; that old line was recognized by Mr. Pellicier as the line he had assisted in running; he stated that they were

Ninth. If you answer the sixth direct interrogatory in the affirmative, please state what marks you pointed out to the said James Gould, Esq., and how you "judged any of said marks to be the same that were made by the said Mc-marked with a blaze and two chops, and I Hardy."

To the ninth cross-interrogatory witness an

swers:

I pointed out to Mr. James M. Gould the blazes, with one or two chops above; I think two chops; I know them to have been the same marks made by me, on occasion of the survey

found trees marked with a blaze and two chops, which were old marks; I did not look for any other trees marked, after I had found the old line; I saw no other old marked trees; they varied a little from the line I run; it bore a little more northerly than mine; I ran the line I did because it was the course called for by