Smith v. Wilson

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 ⁴⁶⁹ very 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.

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