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By the court:

Rost, J.

Benjamin Davis died in the month of January, 1847, leaving as his heirs Celina Davis, the mother of the minor, for whose benefit the plaintiff sues, Martha Davis, wife of W. Morgan, and Emily C. Davis, the surviving wife and administratrix of Augustus N. Powell, who died in the fall of 1850.

The petition alleges that Davis had, when he died, a sum of $6000 in his house; and that Powell, who lived with him at the time, took that sum and converted it to his own use. The prayer is, that his administratrix be compelled to account to the plaintiff for one-third of said amount. In an amended petition the plaintiff further alleges, that Poioell received from Davis, in his lifetime, the sum of $3000, to be invested in land and slaves, for which he never accounted; he also prays judgment for one-third of said sum. Mrs. Morgan has joined the plaintiff in the action, praying for her share of whatever may be recovered.

The defence is a general denial. There was judgment against the succession of Powell for $1700, to be distributed among the three heirs. The defendant has appealed.

The district judge states at large in his opinion, the evidence upon which he relies. That evidence makes out a probable case in favor of the plaintiff. But this is not sufficient, he should have made his case certain; and the testimony adduced by him should have been peculiarly strong and conclusive to do away the unfavorable presumption arising from the delay in bringing the suit, and from the fact that it was not commenced until after the death of Powell, although the main fact upon which it rests must, if it existed, have been known to the children of Davis at the time it occurred.

There is no direct proof of the taking of the mone^ by Powell, or anything inconsistent with the hypothesis that if money of Davis came into his possession, it was given to him by Davis himself.

As the judgment below was for the plaintiff, we would, perhaps, have remanded the case but for some circumstances which the record discloses. One witness testified much more positively in favor of the plaintiff than any other, but his testimony is so pregnant with falsehood that the district judge has taken no notice of it in his elaborate opinion. It is shown that this witness resides out of the parish in which the case was tried; that the -plaintiff went for him and procured his personal attendance at two successive terms of the court. We will not give the opportunity of renewing such exhibitions.

It is ordered that the judgment in this case be reversed, and that there be judgment in favor of the defendant, with costs in both courts.

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