dered judgment, and ordered a writ of habere facius pos- JULY 1830. sessionem to issue for the land recovered. By a bill of exceptions tendered at the trial by Jinkins the defendant, it is shewn, that the plaintiff, for the purpose of shewing documentary title in himself, offered as evidence a paper, purporting to be the original contract, made by W. H. Crawford, Secretary of the Treasury of the United States, on the part of the United States, and Charles Villar, agent of the French emigrant association; whereby, four townships of land, commonly called "the French grant," were sold to said association, under the provisions of the act of Congress, passed the 3d of March, 1817, entitled "an act to set apart and dispose of certain public lands for the encouragement of the cultivation of the vine and olive."* The *NOTE. The following is a copy of the original contract made between the Government and the French association above refered to. Whereas, by virtue of the act of Congress, entitled "An act to set set apart and dispose of certain public lands, for the encouragement of the cultivation of the vine and olive," passed on the third day of March, 1817, the Secretary of the Treasury was required, under the direction of the Presulent of the United States, to designate and set apart, any four contiguous townships, each six miles square, of vacant public lands, lying in that part of the Mississippi Territory, now the Territory of Alabama; and was authorized to contract for the sale of the said four townships, at the rate of two dollars per acre, to be made payable fourteen years after the contract, which should be concluded with any agent or agents of the late emigrants from France, who have associated together for the purpose of forming a settlement in the United States; provided that satisfactory evidence was prodaced, that such agent or agents were duly authorized to form such contract; and that the number of such emigrants being of full age, for which he or they were authorized to act, were equal at least to the number of half sections, contained in the four townships, proposed to be disposed of; and the said Secretary of the Treasury, was further authorized, to make such allotment of the lands among the individuals aforesaid; to stipulate in the proposed contract, for such conditions of settlement, and for the cultivation of the vine and other vegetable productions, as might to him appear reasonable. And whereas, the Secretary of the Treasury, in pursuance of the authority so vested in him, has, under the direction of the President of the United States, designated and set apart for the purposes intended by the said act, the four following townships contiguous to each other, in that portion of the Mississippi Territory, now the Alabama Territory, specified in the said act, to wit: township eighteen in range three; and townsbips eighteen, nineteen and twenty in range four; and has established and confirmed, with certain exceptions, and alterations hereafter stated, the allotment made by, and among the individuals described in said act, a list of whom, was deposited in the office of the Treasury department, on the tenth day of November, 1817; a copy whereof, together with maps of the allotments so made, are hereunto annexed: And whereas, Charles Villar, hath appeared and produced satisfactory evidence, that he is duly a 'horized as agent by the number required, of such emigrants, to form, and to accept, on their behalf, the contract authorized for the said four townships. Now be it known, that I, William H. Crawford, Secretary of the Trea sary of the United States, by virtue of the authority aforesaid, and in consideration of the payments to be made, and of the stipulations hereinafter stated, to be performed by the said association, of individuals, have contracted, and by these presents do contract with the said Charles Villar, agent as aforesaid, for and in behalf of the emigrants in the said act described, and whose names are inscribed in the aforesaid list, deposited in the affice of the Treasury department, and whereof a copy is hereunto annexed, Jinkins v. Noel. JULY 1930. Jiukins v. defendant objected to this document, without proof of its due and legal execution by the respective parties, but the Court admitted it as evidence, on the ground, that its legal execution was sufficiently proved by the seal of the Treasury department of the United States affixed to it. The plaintiff then proved that the land in controversy was part of a tract originally allotted to one Gaines, but by the contract, his name was striken out of the list of allottees, so that the lot was left unappropriated; and for the purpose of proving that it had been afterwards appropriated to one J. Haez, of whom the plaintiff had purchas Noel. to sell to him and them, the said four townships of land, lying and being m that part of the Mississippi Territory, now the Alabama Territory, to wit: township eighteen in range three, and townships eighteen, nineteen and twenty in range four; he or they paying, or causing to be paid theretor, on or before the eighth day of January, one thousand eight hundred and thirty three, the sum of one hundred and eighty four thousand, three hundred and twenty dollars; and also, he and they faithfully complying with the following conditions and stipulations, that is to say: First. That before the expiration of three years from the date of this contract, there shall be made upon each tract, in the aforesaid four townshios, allotted to the respective associates, a settlement by themselves individually, or by others on their account. Second. That before the expiration of fourteen years from the date hereof, there shall be cleared and cultivated, within the said four townships, at least ten acres of land, for each quarter section, taken aggregately. Third. That before the expiration of seven years from the date hereof there shall be cultivated within the said four townships, at least one acre to each quarter section, taken aggregately, in vines. Fourth. That before the expiration of seven years from the date hereof, there shall be planted within the said four townships, not less than five hundred olive trees; unless it shall be previously established, to the satisfaction of the President, that the olive cannot be successfully cultivated thereon. Fifth. That a report shall be made annually, to the Secretary of the Treasury, by the agent of the said association or his successor, shewing the number of settlements made within the said four townships in each year; the progress made in cultivating the vine and olive; and the degree of success with which the same is attended; and describing the number and kinds of such plants, which have been cultivated; and also, that the said agent, or his successor, shall from time to time, furnish to the Secretary of the Treasury, such other information touching the condition and state of the sociation, as he may require. Sixth. That the list of associates, deposited in the Treasury as aforesaid, be recognised, and the persons thereon inscribed, confirmed in the allofments of land, annexed to their names respectively, with the exceptions following, viz: Martin Piquet Joseph, Wells and Leclerc, V. M. Garesche, Jacques Braud and John Roster, Jean Thomas Carre, Laurent Faures, Englebert, Samuel Jackson, Joseph Robard, Pierce Freres, Jean Baptiste Neel, William Tablee, Billington, George Gaines, S. Voorhees, Gillaume Montelius, Kimbal, shall be erased therefrom, and Jaques Moncravie, K. A. Terrier, Madame George, Charles Erugiere, Joseph Ducomun, Piere Gares che, G. Bonno, Piere Drouet, Enaly, and Conde, be inserted thereon, and be entitled, in the the order in which they stand herein, to the allotments of the persons thus erased, and the allotments annexed to the names of the others of the personsthus erased, shall be assigned to other late emigrants, unter such regulations as are hereinafter prescribed. 7th That such emigrants as are inscribed on the said list, who had, previously toknow ing of the allotments assigned to them, respectively settled and improved lands within the said four townslups, either in those sections set apart for the small allotments, or in others, and before the first day of Jinkins v. Noel. ed, he gave in evidence, a letter written by the Secretary JULY 1830. of the Treasury, dated at the Treasury department, on the 11tn of January, 1819, and directed to C. Villar, the agent of the association, by which he proposed, that Messrs. Peniere and Meslier should designate the proper persons to whom the allotments made vacant by the erasures made in the list of allottees, should be appropriated, and that the names of such persons, so designated, should be transmitted to the Treasury department for approbation. He then offered in evidence, a paper which was dated the 26th of October, 1819, and which purported to have been sign August last past, shall be entitled to hold the same to the extent, and in heu of the quantity allotted to them respectively, in the large or small allotment, as the case may be; unless the party to whom such land was actually allotted, shall within six months from the date hereof, tender to such settler, the value of the improvements, which he may have made thereon, to be ascertained by two respectable persons under oath; and en failure to make such tender, the party to whom such land was allotted, shall be entitled to the land allotted to such emigrant as aforesaid, to the extent of the allotment so occupied. and improved, or if the same be msufficient, he shall be further indemnified by the assignment of so much land, as will make up the quantity, out of any lands not otherwise appropriated. Eighth. That the Innds exempted from appropriation by the foregoing provisions, may be appropriated to other emigrants from France, not already provided for, and whose names shall be presented to the Secretary of the Treasury for his approbation, by the agent of the association or his successor; but actual settlement shall, in all such cases, be an indispensable condition. And I, the said William H. Crawford, do further contract and agree, that upon the payment of the above sum of money. and upon the fulfilment of the conditions aforesaid, patents shall be granted to the said individuals or their assigns, for the land to which they may be respectively entitled, under the said act of Congress; but no patent shall be granted for a greater quantity of land, than six hundred and forty acres, for any one person; and no patent shall be granted for any of the land aforesaid, nor shall any title be obtained therefor, either at law or in equity, until full and complete paymeat shall have been made, for the whole of the said four townships, and until the aforesaid conditions and stipulations, shall have been faithfully complied with and performed, on the part of the aforesaid association. And the said Charles Villar, agent as aforesaid, for and in behalf of the individuals associated as aforesaid, covenants and agrees, that he and they will pay, or cause to be paid, on or before the aforesaid eighth day of January, of the year eighteen hundred and thirty three, the said sum of one hundred and eighty-four thousand three hundred and twenty dollars; and that he and they will faithfully comply with and perform all the aforesaid conditions and stipulations. In testimony whereof, I, William H. Crawford, Secretary of the Treasury of the United States, have hereunto set my hand, and caused the seal of the Treasury department to be atfixed, and the said Charles Villar hath also set his hand and seal, this eighth day of January, in the year ofour Lord one thousand eight hundred and nineteen, and in the forty third year of the independence of the United States of America. Seal of [L. S] the Treasury (Signed,) WILLIAM H.CRAWFORD, Department Test: EDWARD JONES, CHS. VILLAR, Agent of the French association. Appended to this contract, is a list of 347 allotments, with the names of the persons to whom the allotments were made, and the quantity assigned JULY 1330. Jinkıns v. Noel. ed at the foot by J. A. Peniere and B. Meslier; and by M. Mestayer, P. M. Mannoury, Chs. Prudhomme, and one Metais, as witnesses. This paper was a map of the allotments, on which were written the names erased, and those substituted; shewing the name of Haez inserted on the land sued for, in lieu of the name of Gaines, erased. On this paper the name of Prudhomme also appeared, as one designated to receive an allotment. On the back of this paper, was a probate of it, made before the Judge of the County Court of Mobile county; and also a certificate of its being registered in Greene county. It appeared that Prudhomme resided in Mobile, and that the other subscribing witnesses resided out of the State. The hand writing of Peniere, of Meslier, and of the subscribing witnesses was proved. The defendant objected to the introduction of this paper as evidence, upon the proof offered; but the Court permitted the face of the paper to be read to the jury as evidence. The plaintiff then further offered in evidence a deed of bargain and sale, dated the 1st of December, 1823, made by Haez to the plaintiff, whereby for valuable consideration he conveyed the land in controversy to him, Noel, describing it as a part of the land originally allotted to Gaines. The execution of this deed was duly proved. This deed was also objected to, as inadmissible evidence, but the objection was overruled. The plaintiff also gave in evidence a copy of the contract first above mentioned, certified by the Secretary of the Treasury of the United States, with the seal of the Treasury department affixed, to be a true copy from the reeords of his office; which copy appeared to be similar in all respects to the original produced; the defendant's objection to this paper was also overruled. After the plaintiff's counsel had gone through with his evidence, the defendant proved that Noel, the plaintiff, was an alien, that he was born in the island of St. Domingo, where he resided till the year 1810. The counsel for the defendant then requested the Court to instruct the jury that if they beleived from the evidence that the plaintiff was an alien, they must find for the defendant; but to each. Also maps shewing the land to which each person is entitled. The allotments were of various quantities, from 40 to 480 acres to each individual; besides which, each allottee was to be entitled to a town lot, and a small outlot of from 3 to 12 acres around the scite of the town. The allotments remaining vacant, or unappropriated, were also shewn by the list, amounting to 37 tracts, besides those which became vacant by the erasures made in the contract, and which were not supplied by other names. Jinkins the Court refused this instruction, and charged the jury JULY 1830. that this defence should have been pleaded in abatement, if available at all; and that under the plea of "not guilty," this objection was not available. The defendant shewed no paper title, nor descent cast. The errors assigned by Jinkins, the appellant in this Court, are: 1st, that the judgment was erroneous, on account of the uncertainty and insufficiency of the description of the land. 2nd, the matters contained in the bill of exceptions, as to the admission and rejection of evidence, and instructions given by the Court. v. Noel. VANDEGRAAFF, for the appellant. The first objection we make is, that the description of the land declared for and recovered, is too vague and uncertain, and is therefore insufficient to identify it. I can see no greater reason why a ju Igment for about 120 acres of land should be sustained, than a judgment in assumpsit for about 120 dollars. There must be certainty, either in the quantity or in the boundaries, else how can the sheriff give possession according to the judgment, and how shall he be protected? Here, the boundaries are as uncertain as the quantity; the land is described as being about a half mile long, and about three eighths of a mile wide; the sheriff cannot know with certainty of what land he is to deliver possession, nor identify it by his precept; he may be justified apparently by his writ, and yet be a trespasser on the land of others. It is said in Buller's Nisi Prius, that "ejectment will not a Page 109. lie of twenty acres of arable and pasture, without shewing how much of each; nor will it lie of a close of meadow called Partridge Lees, containing ten acres, more or less, because the certainty of acres ought to appear in the declaration; nor will it lie for a close containing three acres, without ascertaining whether arable, pasture or meadow." In Virginia, the rule has been adopted that there must be certainty in the description, and in the case of Gregory v. 61 Mun. 174. Jackson, the rule that the plaintiff was to take possession e Mun. 25 26. at his peril, was invoked in vain. For this uncertainty, which runs through the whole of the proceedings, we insist the judgment is erroneous. The original contract was improperly admitted in evidence. The act of Congress authorized the making of a contract, but does not shew that any was made; that fact must be established by legal evidence, and the legal proof of its execution was insufficient. Let us admit that the |