The defendant had no right to require of the judge an opinion upon the weight and sufficiency of the evidence to support the plaintiff’s case, or whether the plaintiff had made out a primd facie case, unless he meant to leave the case on that evidence to the jury, under the direction of the court. Treating it as a motion for a nonsuit, the defendant waived it by offering evidence on his part.

As to the exception, that the plaintiff had set out no breach in his declaration, a breach is sufficiently averred in the declaration, by requesting performance in the terms of the contract. As to the further objection, that the plaintiff gave no evidence of the non-performance, it is against first principles. On an affirmative contract being proved to pay money or perform some duty, it is incumbent on the defendant to prove payment, performance or tender, or an excuse therefrom.

Exceptions overruled, with double costs.