The opinion of the Court, Shepley, C. J., Tenney, Howard and Appleton, J. J., was delivered by

orally. — On which party is the burden of proof ? .The mode of pleading, adopted by the parties, is unusual. The plea is that the defendant’s covenants were not broken. The issue is taken upon that plea. What then is the plaintiff to prove ? She alleges that there was a breach. The defendant says there was not. She has taken the affirmative, and must establish it. It is therefore upon her to prove the breach.

But it is argued that she cannot be required to prove a negative. She must however establish a cause of action. This she cannot do, without proving that the defendant failed to perform, and what amount of damage she has sustained.

Exceptions overruled.