-s:

There is evidence given.-conducing to -show that-the grantee, or those claiming unde.r him,-made no relinquish*, ment of. the land.in New-..Madrid tp the United. States, for the injury of which the certificates were granted,and therefore we insist:

1-. ..That, this is a condition precedent to the .vesting of the right to the land located, and must be proved,in the first instance, bv.the plaintiff before he can recover — see 5 Cond. Rep. 672, also 28; 2 Cond. Hep. 3 34.

2. That, if that js not the.Case, .then in this case,.the defendant having given evidence conducing to show there was no such relinquishment, the plaintiff cannot recover.

3. That the plaintiff' must show that the injured land had been conveyed to the United States by deed.

. 4.' We also insist, that unless the certificates were' granted at- the instance, and by the consent of the grantee, or those claiming under him, and having given evidence conducing to show there was no consent, wa therefore insist that the plaintiff cannot recover.

•5. That the court erred in telling the jury there was' evidence of such consent, and that the conveyance of. the heirs, since the grant and location, shows their consent,

The assignment of errors draws in question the legal}-' ty of the copies from the surveyor general’s office, as evidenceof themselves of the legitimacy of the plaintiff and the validity of his title.

The questions, involved in this case are the same with those involved in Wear and Hickman v. Bryant, now before the court. The points relied on in support of this judgment, will therefore only- be stated, and the court is referred to the authorities and observations cited in the Other case.

First. The certified copies from the surveyor-general’s office are, under our statute, evidence per se.

Second. A marriage between a white person anda mulatto was not void by- our law until the statute of 1835; and, therefore, the instruction moved by the de~ fendant, that declared the plaintiff illegitimate on that ground, was rightly refused.

Third. The plaintiff gave in evidence a valid title ta the possession of an undivided moiety of the land its controversy. In support of this position, it is insisted*

1. The legal right conferred by the certificate to appropriate to private use the quantity of land designated, is vested by that instrument in whoever was the owner of the-injured land', whether that person was the con-firmee himself, or his heir, or the assignee in fact of his title.

2. The right to the land'located following the right to the certificate, by which the appropriation is made, vests in the same person,-no matter by whom the location may he made. ' ■

3.- And this title, although not a legal title at eommost law, is sufficient under our statute to support a recovery in ejectment.