Winter et al. v. United States.
authenticated by the clerk of the old county. Jackson v. Tibbetts, 2 Wend. 592. And so, we insist, is now the rule as to records made in Louisiana, before the division, respecting lands now in Arkansas.
Hearsay and general reputation competent testimony as to boundaries. 1 Phillips' Ev. 249, 251.
The acts and declarations of Winter, from the date of the grant to the date of his settlement at the post, in regard to his removal there, its object, the transportation of the stone and its object, as well as the declaration of Winter, extracted from Stilwell by the examination of the United States, and in answer to interrogatories propounded by them, are competent proofs; the former are res gestæ as to the matter, and the latter being proof elicited by the United States, they can neither impeach the witnesses or object to its competency.
What a deceased witness has sworn to at a former trial between the same parties, in relation to the same issue, is proper evidence. Jackson v. Crissey, 3 Wend. 251; Crary v. Sprague, 12 Ib. 41.
We insist that the parties and issue were the same when these cases were before the commissioners that they are now; and what witnesses then said, who are now dead, is good evidence, which embraces all the witnesses examined by said commissioners. See also 4th sect. Act of Congress, 1824.
Argument for the United States
S. H. Hempstead, district attotney, argued the case fully in behalf of the United States, on all the points presented; but to defeat the claim relied mainly on the position, that as the concession was indefinite in itself, a survey was necessary to give it locality, and as no survey was ever pretended to have been made, the concession was void.
As to the necessity of a survey, which was the turning point in the case, the following is a synopsis of his argument.
The survey of lands was always a matter of the first importance in the province of Louisiana. It was generally expressed and always implied, in all grants not capable of complete identification by natural boundaries. They were made upon conditions that they were not to interfere with previous grants, or in the very phraseology of the grants themselves, "without
