delivered the opinion of the court. This action is brought to recover the value of the plaintiff’s slave, drowned in consequence of a pirogue, in which he was descending the river, being run against by the steam boat, and upset.

The cause was submitted twice to juries, in the court of the first instance, without a verdict being obtained. They disagreed in both instances. The case was then submitted to the judge, who decided in favor of the defendant, and the plaintiff appealed.

The evidence is contradictory and cannot be reconciled. After several perusals, our *167minds have been left in doubt, whether the accident was owing to the negligence of the persons in care of the boat, or not. Under these circumstances, as the burden of establishing his right to recover was thrown on the plaintiff and, as there has been a decision in the court of the first instance in favor of the defendant, it must prevail here.

It is therefore ordered, adjudged and decreed, that the judgment of the court of probates be affirmed, with costs.