
    
      ROMAN'S HEIRS vs. SMITH & AL.
    
    An extract from the books in which grants were recorded, cannot be given in evidence, until the absence of the grant be satisfactorily accounted for
    Appeal from the court of the seventh district.
   Martin, J.

delivered the opinion of the court. This case is before us on a bill of exceptions to the opinion of the judge a quo, in rejecting an extract of a book, entitled Primeros decretos de concesiones, left by the officers of Spain, at the change of government, as the evidence of a grant from the king, under which they claim.

West'n District

Aug. 1823.

The king’s lands were granted by the governor or intendant, whose ascent to the application for land was evidenced by an order, decreto, made on the margin, or at the foot of the petition; or finally by a formal grant. The dereto had the signature, and the grant the signature and seal, of the officer granting and the counter-signature of a secretary.

The decreto or grant was always delivered to the applicant, as the evidence of his right. The extract appears to be a record of the name of the grantee, the quantity of land granted and its situation. Whether this record was made from a decreto or grant, and we are ignorant of any other mode by which vacant lands were granted, it is evidence,the admission of which, was not to be permitted to the grantee or his heir, who had once received from the government a decreto or grant, (under the hand or hand and seal of the officer authorised to grant,) entitled to more credit than the record or extract of it, made by a clerk.

We, therefore, cannot say that the district judge did err, in insisting, before he admitted the extract in evidence, that the plaintiffs should shew that the original was not in their possession.

Brownson for the plaintiff, Lessussier for the defendant.

But we are of opinion that, the judgment ought to have been as in the case of a nonsuit.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that therre be judgment, as in the case of a nonsuit. 
      
      Porter, J. took no part in this case, having been of counsel for the plaintiff.
     