Dick et al. v. Runnels. that therefore no notice was made out, ie sufficient. It is not necessary for him to state that they were not actually within one hundred miles. If they had been temporarily within that distance, and the certifying officer did not know it, the certificate would still have been good. If either of the two facts, viz. that the party resided within one hundred miles, or that he was temporarily within that distance, and that the magistrate knew it, were estabshed by parol proof, the certificate would then be irregular and void. This case came up from the Circuit Court of the United States for the District of Mississippi, on a certificate of division in opinion between the judges thereof, The only question involved was the construction of a part of the 30th section of the Judiciary Act of 1789 (1 Statutes at Large, 88), which part is as follows. After providing for taking the testimony of persons" who shall live at a greater distance from the place of trial than one hundred miles," the section proceeds thus :-"Provided, that a notification from the magistrate, before whom the deposition is to be taken, to the adverse party to be present at the taking of the same, and to put interrogatories, if he think fit, be first made out and served on the adverse party, or his attorney, as either may be nearest, if either is within one hundred miles of the place of such caption, allowing time for their attendance after notified, not less than at the rate of one day, Sundays exclusive, for every twenty miles' travel." On the trial of the cause, in June, 1838, the plaintiffs' counsel offered in evidence a deposition, attached to which was a certificate in these words, viz..- "And I, the said Paul Bertus, recorder of the first municipality, and acting mayor of the city of New Orleans aforesaid, do certify, that the deposition of the said William Christy was taken as aforesaid, because he, the witness, lives at New Orleans aforesaid, a greater distance than one hundred miles from Jackson, the place of trial of the suit or matter of controversy aforesaid, and I caused no notification of the time and place of the taking of said deposition to be made out and served upon Harden D. Runnels, the adverse party, or his counsel, to be present at the taking of said deposition, and to put interrogatories, if he or they thought proper, because neither the said Hardin D. Runnels nor his counsel live within one hundred miles of the place of caption to this deposition, being the place where the same is taken; and I do further certify, that the deposition was taken down by the witness, and signed by him in my presence, after being duly sworn; and I do further certify, that I am not of counsel or attorney to either of the parties aforesaid, or interested in the event of the cause or controversy aforesaid. "In testimony whereof I have hereunto set my hand and seal, the day and year first before written. Signed, [SEAL.] PAUL BERTUS, Recorder No. 1, Mayor pro tem." Dick et al., v. Runnels. And thereupon a motion was made by the defendant's counsel to exclude the deposition, on the ground" that the commissioner taking said deposition did not certify, that neither the said defendant or his attorney was within one hundred miles of New Orleans, the place of taking the deposition, at the time of taking the same." Upon which question the judges were opposed in opinion, which is ordered to be certified to the Supreme Court of the United States, which is done accordingly. Mr. Bibb, counsel for the defendant, submitted the case to the Court. Mr. Justice McLEAN delivered the opinion of the Court. The only point raised in this case is, whether the certificate of 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 attorney, 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, withcat a notice, the proceeding would be irregular and the depo- . sition inadmissible. The United States v. Lawton et al. 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, Appellant, v. JOSEPH LAWTON, EXECUTOR. OF CHARLES LAWTON, MARTHA POLLARD, HANNAH MARIA KERSHAW WIFE OF JAMES KERSHAW, Et al. 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 might therefore commence at any point of this distance with as much propriety as at any other 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 be effectual. Previous to the act of May 26, 1824, Congress alone could act upon these incipient titles. By 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 of East Florida, under the following circumstances. On the 10th of November, 1817, James Darley presented the following petition to Governor Coppinger. "To his Excellency the Governor : "Don James Darley, a native of Great Britain, with the respect due to your Excellency, says, that with the view of settling himself The United States v. Lawton et al. in this province under the protection of his Catholic Majesty, knowing the very great advantages that would result to the commerce of it from the article of lumber, if machinery for sawing is erected, for sawing for the consumption 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. 66 Taking into consideration the benefit and utility which ought to result to the improvement of this province by what the petitioner proposes, There are granted to him, in absolute property, the six miles square of land which he solicits for said water saw-mill, and that it 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." On the 21st of December, 1817, George Clarke, the surveyorgeneral, 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 twenty-three 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; that if made at all, it was made after the 24th of January, 1818, The United States v. Lawton et al. 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 whieh the record does not state), and letters testamentary were granted to Charles Law ton 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 the United States answered the bill of revivor, denying the right of Lawton to revive the suit, either for himself as executor, or on behalf of the unknown heirs and devisees. 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 |