majority">LeGrand, C. J.,

delivered the opinion of this court.

This case has been heretofore before this court, on the same state of pleadings and evidence as shown by the present record. See 10 Md. Rep., 67.

In the rulings of the court below we discover nothing of which the appellant can justly complain; on the contrary, we think the court allowed her more than she was entitled to, by granting her first prayer, which authorized the jury to presume the grant of letters of administration. The fact of administration on the estate of Samuel Owens, is indispensable to the defence of the appellant; and we are not aware of a single case, nor has any been referred to by counsel, in which the grant of letters has been allowed to be presumed from the lapse of time. The granting of letters of administration by the orphans court, is a judicial act, and, like all such acts, must be proven by the record. The rule on this subject is *469very clearly stated by tire Supreme Court of the United States, in the case of Weatherhead’s lessee vs. Baskerville, et al., 11 How., 360. In that case the effort was to allow the jury to infer a partition of lands from the evidence, without the production of the record, showing the partition. What was said there is equally applicable to the attempt made in the present instance. “By the law of Tennessee,” said the court, “such a partition is a judicial act, and becomes a record. It can only be proved as such records may he, and when it is alleged to have been lost or destroyed, its contents can only'’ be reached by proofs of a certain and fixed kind, well known in the law. In the proper sense of the term presumed, the records of courts are never so. The existence of an ancient record of another kind may sometimes be established byr presumptive evidence. But that is not. done without very probable proof that it once existed, and until its loss is satisfactorily accounted for. The rule in respect to judicial records is, that before inferior evidence can be received of their contents, their existence and loss must be clearly accounted for. It must be shown that there was such a record, that it has been lost or destroyed, or is otherwise incapable of being produced; or that its mutilation from time or accident has made it illegible. In this last, though, not without the production of the original in the condition in which it mayr be. The inferior evidence to establish the existence of a judicial recerd, must be something officially connected with it, such as the journals of the court, or some other entry, though short of the judgment or record, which shows that it has been judicially made. The burning of an office, and of its records, is no proof that a particular record had ever existed, it only lays the foundation for the inferior evidence.”

In the case now before the court, there is no pretence that the record has been lost or mutilated; and the proof shows that the records of the Orphans court of Calvert, county contain no allusion whatever to the fact of letters having been granted on the estate of Samuel Owens. This is a possessory action, and depends entirely upon the title, which can only be transmitted through the instrumentality of letters of admin*470istrairon. It is not an action in which the equitable considerations urged by counsel — -if they be shown to exist in point of fact — can avail to the defendant] they can be invoked, if at; •all, only in another tribunal.

(Decided Oct. 29th, 1861.)

Entertaining these views of the case, it follows that the ■court did not err to (he injury of defendant in its action on the prayers, and the judgment must therefore be affirmed.

Judgment affirmed.

Citation profile

How this case has been treated — in progress