delivered the opinion of the court. The plaintiff, in his own right, that of his wife, and as guardian to certain minor children, residing in the state of Mississippi, *32claims a slave in possession of the defendant. The answer is a general denial. The evidence does not establish title to the property, and the petitioner cannot recover.

The judge a quo gave final judgment in favour of the defendant. We think this a case in which there should be one of non-suit. 7 Martin, 562, 566. 9 ibid 268, 533.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, that there be judgment for the defendant as in case of a non-suit, and that he pay the costs in the court of the first instance, and the plaintiff those of appeal.