— Suppose this cause under trial on the present pleadings, who would have the onus; would not the plaintiff be bound to make.out the trespass?

Hornblower, I apprehend not; if the' proceeding before the justice should be suggested on the record, according to the intimation in the New-York case.

Th;e Court took time till the next day to consider the question; when they were unanimously of opinion, that the plaintiff was intitled to his motion. Rule allowed.