plaintiff delivered the horse to the defendant to keep; this, I thought, would do. The burden of showing how the horse came to his death was on the defendant; it was his business to show there was no negligence.

“ In the defence, the defendant proved that the plaintiff called at his hotel, and desired to have a separate stable for his horse. This he was told he could not have; he was invited to, go, and did go, to the stable; he desired that a stronger rope than that which was about to be used should be got. This was accordingly done and the horse tied as he desired. He wished that his horse should be so secured as not to be able to fight. The horses near the stall in which he was placed were removed.

“ In reply, it was proved that the stall was in bad condition, being “pawed up" as the witnesses said, near to the trough, so as to make it impossible that a horse should stand by a short tether.

“To this proof the defendant would have rejoined, but I thought it was strictly in reply to the defendant’s proof, and therefore the defendant could not rejoin.

“ The case was’submitted to the jury, who found the highest value of the horse proved, $80.”

The defendant appealed, and now moved in arrest of judgment, on the ground, that the declaration does not contain a sufficient allegation of property in the plaintiff. And, failing in that motion, then, he renewed his motion for nonsuit, on the ground of absence of proof that property in the horse was in the plaintiff; and, also, absence of proof of negligence on the part of defendant. And, failing in his motion for nonsuit, then, he moved for a new trial, on the ground : Because, after the defendant had closed his testimony, showing that the plaintiff had had the horse secured to his own liking and satisfaction, the plaintiff then, for the first time, introduced evidence, tending to show, that the state of the stalls in defendant’s stable rendered it necessary that the horse should be secured in the particular way in which he was secured; to which evidence the defendant was not permitted to reply by evidence negativing the fact.

on the ground in arrest of judgment, cited 1 Ch. PI. 379 ; 2 Saund. 379 ; Com. Dig. Pleader, 3, m. 9 ; Steph. PI. 147; Sid. 184; 3 Saund. 378; 2 Stra. 1023 ; 1 Cro. Jac. 46; 9 M. & W. 665; 2 Lev. 156; Com. Dig. Case, B. 1. On the ground for nonsuit, they cited 48 Eng. C. L. R. 164; and, on the ground for new trial, Best on Ev. § 431; 1 Arch. N. P. 8; 2 N. & McC. 161; 4 Rich. 464.

on ground in arrest of judgment, cited 2 Saund. 47 f; 6 Har. & Johns. 47; 2 Saund. 74; 6 Com. Dig. Pleader, C. 85 ; 3 Wils. 297; 40 Eng. C. L. R. 16; 1 Ch. PI. 402; 2 H. Bl. 261; 4 T. R. 470 ; 2 Bur. 1159 ; 9 Mass. 148 ; 3 Bur. 1725; 2 Johns. R. 551; Steph. PL 149. On the ground for non-suit, 1 McC. 509; 4 Johns. R. 175; 9 Pick. 280 ; and on the ground for new trial, 1 Stark. Ev. 418.