
    HAYES vs. BERWICK.
    Spanish governors' orders, prove themselves.
    Long absence, when evidence of death.
    The plaintiff claimed a tract of land, by right of succession from her husband, in the defendant's possession.
    To prove the husband's title, a petition for the land, addressed by him to governor De Galvez, was introduced with the governor's como pide or fiat.
    By the Court. Papers of this kind are considered as records, and prove themselves, altho' no seal was ever affixed to any of them. Such papers being, in general, the oniy evidence which settlers had of their titles under the Spanish government, it being very seldom the case that the incipient right acquired by the governor's signa~ ture, ripened into a formal grant. The governor's signature proves itself-being of sufficient notoriety, without the addition of a seal. h has been the practice of the Court of this country, since the establishment of the Ameriean government to consider these papers as entitled to the same credit as grants.
    The plaintiff then offered to prove the death of her husband, by witnesses who were ready to testify that he left the province of Louisiana, about twenty years ago, for one of the northern states, intending to collect some property and return immediately, and that he has never been heard of.
    
      Porter, for the defendant.
    This evidence is inadmissible. Long absence does not authorise the presumption of the ancestor’s death, so as to au-thorise the heir to enter upon the land.
    The Civil Code provides that, where a person shall not have appeared at the place of his residence, and shall not have been heard of for five years, his presumptive heir, at the time he was heard of for the last time, may, by administering the proof of this fact, cause himself to be put, by the competent judge, into provisional possession of the estate, which belonged to the absentee, giving security for the faithful administration thereof. Civil Code 16, art. 9.
    The estate does not seem to vest absolutely in the heir, till thirty years after he may have obtained provisional possession, or after one hundred years have elaped since the birth of the absentee. Id. 18, art. 19.
    I. Baldwin, for the plaintiff.
    The party, in the present case, went away long before the adoption of the Civil Code, and possession was taken when the principles invoked by the defendant's counsel, were not yet established.
   By the Court.

What we call the Civil Code, is but adigest of the civil law, which regulated this country under the French and Spanish monarchs. It is true, some new principles have been intercalated, and others abrogated or omitted.

By a maxim, consecrated by the best authorities, every absentee, whose death is not clearly and precisely established, is presumed to live until the age of one hundred years; that is to say, the most remote period of the ordinary life of man. 1 Deni-sart 13, Verbo Absens.

An absentee is presumed to live till the contrary is proved: otherwise the absence must be such, that the life of a man, who may live one hundred years, should be presumed to have ended. 1 Ferriere 13, Verbo Absens.

Death is never presumed from absence; therefore, he who claims an estate, on account of a man's death, is always held to prove it. An absentee is always reputed living, until his death be proved-or until one hundred years have elapsed since his birth. 2 Ferriere, 226, Verbo Mort.

Although a man be absent, and there be no account of him, his death is not to be presumed: they do not proceed to the division of his estate, for he is oresunied to live one hundred years, 2 Pigeau, 2.

These principles are drawn from the Roman law. Placuit centum annos tuendos esse muni-cipes, quia is finis Vitae longaevi humanis est. ff lib. 7, tit. 1, b. 56. Centos annos observanclos esse constat, qui finis vitae longissimum est. Id. lil. 33, tit. 2, l. 8. Non aliter actionem fini-ri concedimus, nisi centuin annorum curricula ex-cesserint, nisi centum annorum curricula ex-annorum spatium longissimae vitae in homine esse refert. Plin. 11, c. 37, Varro 5.

Evidence rejected.  