TUCKER vs. PEEBLES'S CURATOR, 10 La. 403

Martin, J., delivered the opinion of the court. The plaintiff obtained an injunction, to prevent the sale of certain slaves, which he claimed, and which were about being sold by the defendant. At the next term of the District Court, the defendant obtained an order, requiring the plaintiff to produce in open court, on a given day, the documents annexed to his petition at the time the injunction was granted, and which, it appears, had been since taken from it. The order was extended, and a rule entered that the suit be dismissed, if tbe order was not complied with, by producing the documents on the protracted day.

The plaintiff’s counsel filed his own affidavit, stating that the documents mentioned in the petition, as he was informed by the plaintiff, had been lost; that commissions had been taken out to prove their loss and contents. Notwithstanding this affidavit, or failure to produce the documents, as ordered, the . suit was dismissed. It appears to us, the district judge erred. The absence of the documents affords no evidence of their having been taken away by the plaintiff.

The maxim cui prodest ille fecit, would offer a greater presumption against the defendant t*3 •* *■ ^ than the plaintiff for the former had a greater interest in their disappearance. Criminality is never presumed, and the alleged loss may have been caused by accident, or the want of care and attention of the person to whom the safe keeping of the petition was confided.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and the case remanded, witli directions to the court beiow to proceed therein according to law ; the appellee paying the costs of the appeal.